the honorable ricardo s. martinez · 2013. 7. 31. · note date: december 7, 2012 ... penn cove,...

TULALIP MOTION FOR

SUMMARY JUDGMENT

No. C70-9213, Subproceeding 05-4 - 1

MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE 1115 NORTON BUILDING, 801 SECOND AVENUE

SEATTLE, WASHINGTON 98104-1509 206-386-5200

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THE HONORABLE RICARDO S. MARTINEZ

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA, et al.,

Plaintiff,

vs.

STATE OF WASHINGTON, et al.

Defendant

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CIVIL NO. 70-9213

Subproceeding No. 05-4

TULALIP TRIBES’ MOTION FOR

DECLARATORY JUDGMENT RE

AMENDED REQUEST FOR

DETERMINATION CONCERNING

SUQUAMISH FISHING AREAS AND

MOTION TO DISMISS SUQUAMISH

CROSS-COMPLAINT

NOTE DATE: December 7, 2012

STATEMENT OF THE CASE

The Tulalip Tribes respectfully seek a determination that that the Suquamish Tribe has no

adjudicated usual and accustomed fishing grounds and stations in certain waters in Washington,

specifically the following sheltered or discernible marine areas: East side of Admiralty Inlet, (including

Admiralty Bay, Mutiny Bay, Useless Bay, and Cultus Bay), and the east side of Whidbey Island,

Saratoga Passage, Penn Cove, Holmes Harbor, Possession Sound (south to Point Wells), Port Susan,

Case 2:05-sp-00004-RSM Document 199 Filed 10/29/12 of 27

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Tulalip Bay, and Port Gardner.1 (See Attachment A), and to clarify previous language of the Court

concerning Suquamish usual and accustomed fishing grounds and stations.

The Tulalip Tribes further seek an order that permanently enjoins the Suquamish from issuing

regulations for and fishing in the waters noted above in violation of the judicially established status quo

of Finding of Fact No. 5 of the Court’s Orders Re Herring Fisheries and Determination of Usual and

Accustomed Fishing Places of Additional Tribes, U.S. v. Washington, 459 F. Supp. 1020, 1049 (1978),

and other applicable law.

JURISDICTION

This case is brought pursuant to this Court’s 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), as modified by the Court on August 23, 1993.

The Tulalip Tribes do not seek to re-litigate Suquamish’s adjudicated usual and accustomed

areas but, rather, seek to clarify ambiguities and interpret, clarify, define, and identify the geographic

scope of those areas. The Court has appropriately exercised its continuing jurisdiction to clarify or more

closely interpret, define, or identify fishing areas in numerous cases.

PARTIES

The Petitioner, The Tulalip Tribes, is the successor in interest to certain tribes or bands who used

and occupied territories along the Snohomish-Snoqualmie-Skykomish river systems and on adjacent

islands including Whidbey Island and Camano Island and who utilized large areas of marine waters in

Washington State, and who were signatories to the Treaty of Point Elliott, and hold fishing rights

thereunder.

The known Respondent is the Suquamish Tribe.

1 These areas approximate Washington Puget Sound Salmon Management and Catch Reporting

Areas 8, 8A, 8D and eastern portions of 9. WAC 220-22-230(8)-(11), (14)-(17). These also

approximate Marine-Fish Shellfish Management and Catch Reporting Areas 24B, 24C, 24D, 26B, and

26AE.

WAC 220-22-400(12)-(14), (20). See Exhibits A & B hereto.


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Other interested parties may likely include the Lummi Indian Tribe, Upper Skagit Indian Tribe,

and Swinomish Tribal Community which are also the successors in interest to certain tribes or bands

signatory to the Treaty of Point Elliott and which hold fishing rights thereunder. Swinomish has filed a

Motion for Partial Summary Judgment. Whether other parties to this case will support respondents’ or

petitioners’ positions or actively participate in the subproceeding is unknown at this time.

Summary judgment is appropriate where “there is no genuine issue of material fact and. . . the

moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). See Northwestern Mut.

Life Ins. Co., 26 F.3d 957, 959 (9th Cir. 1994). The Court is to consider the pleadings, declarations, and

exhibits to the motion. Fed. R. Civ. P. 56(c).

STATEMENT OF FACTS

The Tulalip Tribes are political successors in interest and descendants of one or more of treaty

signatories commonly referred to today as the Snohomish, Snoqualmie and Skykomish Tribes who were

parties to the Treaty of Point Elliott. U.S. v. Washington, 626 F. Supp. 1405, 1577 (WD Wash. 1985).

The Tulalip Tribes’ adjudicated usual and accustomed areas include marine and fresh water areas

as previously adjudicated by the Court in the following decisions: Decision Re Status of Additional

Tribes of December 31, 1974 and February 26, 1975, U.S. v. Washington, 459 F. Supp. 1020, 1039

(1978); Decision and Decree re 1975 Fraser River Sockeye of July 16, 1975 and August 6, 1975,

U.S. v. Washington, 459 F. Supp. 1020, 1055 (1978); Order re Tulalip Tribes’ Usual and Accustomed

Fishing Places of September 10, 1975, as amended October 15 and December 29, 1975,

U.S. v. Washington, 459 F. Supp. 1020, 1058 (1978); Findings of Fact and Conclusions of Law in Re

Tulalip Tribes’ Request For Determination of Usual And Accustomed Fishing Places of

December 31, 1985, U.S. v. Washington, 626 F. Supp. 1405, 1527 (1985); and those specific areas

enumerated by the Court in Finding of Fact in 380-82 and Conclusions of Law 94-01,

U.S. v. Washington, 626 F. Supp. 1405, 1527-32 (1985), 841 F.2d. 317 (9th Cir. 1988).


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Among other areas, the Tulalip Tribes’ hold treaty-secured fishing rights in areas involved in this

dispute. See, Orders Re Herring Fisheries See, Finding of Fact 380-81, U.S. v. Washington, 626 F.

Supp. At 1530.

In 1975, the Court issued an Order as a result of a dispute over fishing for herring. U.S. v.

Washington, 459 F. Supp 1020, 1048 (1975). The Court noted that Suquamish had made a “prima

facie” showing that its fishing places were in “the marine waters of Puget Sound from the northern tip of

Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the

western side of this portion of Puget Sound and also Hood Canal.”, U.S. v. Washington, 459 F. Supp. At

1049. This Order was entered on April 18, 1975 on the basis of a prima facie showing before the

Tulalip Tribes’ request for determination that first established its usual and accustomed areas was ruled

upon later in 1975.

Historically, the Suquamish generally complied with the Ninth’s Circuit’s interpretation. See

October 26, 2012, Declaration of McHugh, and October 26, 2012, Declaration of Rawson, attached

hereto. However, after twenty years of compliance, in 2003 the Suquamish actively began to expand the

scope of its fishing areas beyond the Ninth Circuit’s holdings and beyond the District Court’s

determination and beyond where Suquamish customarily fished at or before treaty times. For instance,

the Suquamish Tribe has attempted to open various fisheries in sheltered marine waters on the east side

of Puget Sound, although these areas are not usual and accustomed fishing areas for the Suquamish

Tribe. For example, on September 30, 2003, Suquamish issued Regulation 03-695, purporting to open

crab harvesting for the first time in Washington Shellfish Management Areas 26A east, 24C and 24D

within Region 2 East.

Suquamish then continued to exceed the scope of the Courts’ orders by issuing fishery

regulations for new fisheries in new waters that are outside of Suquamish usual and accustomed fishing

areas, such as Suquamish shrimp Regulation 04-13S (March 29, 2004). More recently, Suquamish

issued fishery regulations for shrimp in WDF Area 26A East (Regulation 05-28S (Apr. 5, 2005), and on

June 14, 2005 for crab in Region 2 East. Suquamish Crab Regulation 05-57S. Future attempted

openings in these areas are likely.


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The Tulalip Tribes have consistently expressed their objections to these regulations and other

attempted openings by the Suquamish Tribe. Declaration of McHugh, October 26, 2012, p. 2 Exhibit E

hereto.

This attempt to expand the established status quo fishing by accessing additional marine waters

outside of the fishing grounds traditionally fished by Suquamish, has resulted in conflicts on the water

and management and allocation problems between tribal fishers.

Areas in question in this case are not listed or described as being within Suquamish’s usual and

accustomed fishing area by the District Court. Continuing attempts by Suquamish to establish fisheries

in these areas will be disruptive of current patterns of fishing and will seriously impact local fishing by

The Tulalip Tribes. Declaration of Rawson, October 26, 2012, p. 2, paragraph 6. Exhibit D hereto. As is

discussed below, the evidence in the record does not provide support for Suquamish fisheries in the

enclosed and discernible areas referred to.

LEGAL AUTHORITIES AND ARGUMENT

1. Determining Usual and Accustomed Fishing Areas

The determination of any area as a Usual and Accustomed (U&A) fishing ground or station of a

particular tribe must consider all of the factors relevant to (1) use of that area as a usual or regular

fishing area, (2) any treaty-time exercise or recognition of paramount or preemptive fisheries control

(primary right control) by a particular tribe, and (3) the petitioning tribe‘s (or its predecessors’) regular

and frequent treaty-time use of that area for fishing purposes. United States v. Washington, 384 F. Supp.

at 332, 459 F. Supp. at 1059.

In order to establish U&A in an area, a tribe must show that it is a “usual and accustomed”

fishing ground or station of that tribe. The words “usual and accustomed” “indicate the exclusion of

unfamiliar locations and those used infrequently or at long intervals and extraordinary occasions.” U.S.

v. Washington, 384 F. Supp. 312, 332 (W.D. Wash. 1974). Judge Boldt emphasized that the words were

“probably used in their restrictive sense” and did not “include areas where use was occasional or

incidental.” Id at 356. The Ninth Circuit recently reaffirmed this approach, stating in Muckleshoot III,

235 F.3d at 434, that to establish U&A the use must have occurred “with regularity,” rather than having


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been “isolated or infrequent.” In so holding, the Ninth Circuit also quoted and relied upon Judge Boldt’s

statement that, while “marine waters were . . . used as thoroughfares for travel by Indians who trolled

en route,” such use does not give rise to U&A because of its incidental character. Id. at 436 (internal

quotation marks omitted).

2. Determination of Suquamish Fishing Areas

In 1975, the Court issued an Order as a result of a dispute over fishing for herring. U.S. v.

Washington, 459 F. Supp 1020, 1048 (1975). The Court noted that Suquamish had made a “prima

facie” showing that its fishing places were in “the marine waters of Puget Sound from the northern tip of

Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the

western side of this portion of Puget Sound and also Hood Canal.”, U.S. v. Washington, 459 F. Supp. At

1049. This Order was entered on April 18, 1975 on the basis of a prima facie showing before the

Tulalip Tribes’ request for determination that first established its usual and accustomed areas was ruled

upon later in 1975.

In May of 1985, the Suquamish filed an action to expand their usual and accustomed fishing

places to the eastern side of Puget Sound. U.S. v. Suquamish Tribe, 901 F.2d.772 (9th Cir. 1990). In

reviewing Suquamish claims the Ninth Circuit noted: “At the time of the Treaty of Point Elliot they did

not fish in those areas, which were the usual and accustomed fishing places of the Duwamish.” Id. at

774.

An analysis of the Court’s Orders Re Herring Fisheries demonstrates that the marine waters of

Area 8A are not within Suquamish adjudicated usual and accustomed areas.

The District Court previously limited Suquamish usual and accustomed fishing areas to the west

side of Puget Sound as follows: “the marine waters of Puget Sound from the northern tip of Vashon

Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side

of this portion of Puget Sound and also Hood Canal.” U.S. v. Washington, 459 F. Supp. at 1049

(emphasis added). Use of the phrase “this portion” denotes a limited area of Puget Sound. The “western

side” of “this portion” further limits the Suquamish’s usual and accustomed fishing area, as do the

geographical references. If the Court had intended to include all the marine waters of Puget Sound


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stretching to the eastern boundary of the water body in Suquamish’s usual and accustomed fishing areas,

the Court would have said expressly said so, rather than limiting the term with specific geographic

references on the west side of Puget Sound.

In Subproceeding 97-1, Suquamish acknowledged that the geographic places mentioned by the

Court anchor a tribe’s usual and accustomed fishing area and that “specific place names . . . narrow the

ambiguity” caused by phrases like “‘saltwater of Puget Sound’ [which] can behave with troublesome

ambiguity.” Suquamish Response to Motion for Preliminary Injunction at 3, 7 (Jan. 31, 1997).

Subproceeding 97-1 (Dkt No.24).

3. Determining Judge Boldt’s Intent

Nowhere in the recitation of Suquamish usual and accustomed fishing areas are waters on the

east side of Puget Sound or in the enclosed waters of Area 8A referenced. In fact, by its plain terms, the

Court’s earlier findings are limited by its geographic references to the west side of Puget Sound. The

term “Puget Sound” is limited by the phrase “from the northern tip of Vashon Island to the Fraser River

including Haro and Rosario Straits.” Id. Moreover, while the reference to “streams draining into this

the western side of this portion of Puget Sound” refers to a fresh water fishery, the phrase “this portion

of Puget Sound” confirms that the Court did not mean to include all the marine waters of Puget Sound,

including waters on the east side of Puget Sound, within the Suquamish’s usual and accustomed area.

Id.

There is no direct or indirect evidence in the record indicating that Suquamish has usual and

accustomed fishing areas in the Area 8A. The Court has held that usual and accustomed fishing grounds

and stations are determined based on various factors stemming from treaty time evidence and post-treaty

anthropological studies, including evidence of: (1) use of that area as a usual or regular fishing area; (2)

any treaty-time exercise or recognition of a paramount or preemptive fisheries control (primary right

control) by a particular tribe; and (3) the petitioning tribe’s (or its predecessors’) regular and frequent

treaty time use of that area for fishing purposes. U.S. v. Washington, 626 F. Supp. at 1527. None of

these sources indicate that Suquamish regularly fished in the sheltered waters of Saratoga Passage, Penn


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Cove, Holmes Harbor, Possession Sound, Tulalip Bay, and Port Gardner. The term “customarily” does

not include “occasional and incidental” fishing or trolling incidental to travel. U.S. v. Washington, 384

F. Supp. 312, 353 (W.D. Wash. 1974) (Decision I).

As to the waters north of the Kitsap Peninsula, the record contains not a single documented

incident of fishing and only one documented incident of travel north. That incident is a trip to the mouth

of the Fraser River, a trip clearly made for trading, not fishing, purposes.

In exhibit USA-73, Identity, Treaty Status and Fisheries of the Suquamish Tribe of the Port

Madison Reservation (Dec. 15, 1974), authored by Dr. Barbara Lane, explains that “… Suquamish held

the west side of Puget Sound from near the mouth of Hood Canal south to Vashon Island.”2 Ex. USA-

73, p. 1. (Exhibit C, hereto attached). The maps associated with the report show Suquamish fishing

focused solely on the west side of Puget Sound. See id. at p. 22 (indicating locations where fish were

caught). Further, a listing and mapping of place names, shows no Suquamish place names in the marine

areas listed in paragraph 1 above, id., map c, p. 43.3 The conclusion that Suquamish does not have usual

and accustomed fishing areas on the east side of Puget Sound is consistent with the evidence in the

record previously offered to support the limited geographic scope of Suquamish’s usual and accustomed

fishing area.4

2 The anthropological reports of Dr. Barbara Lane have been found by the Court to be “highly

credible” and “very helpful in determining by direct evidence or reasonable inferences” the location of

usual and accustomed areas. U.S. v. Washington, 459 F. Supp 1020, 1059 (W.D. Wash. 1978).

3 Tribal place names are an indicator that an area was familiar to a tribe and possibly utilized by

the tribe at treaty times.

4 Dr. Lane has explained that one fleeting reference to Suquamish fishing near the mouth of the

Snohomish River was not an indication of fishing at a usual and accustomed place. See Lane Declaration

December 6, 2011. Exhibit C attached. That Declaration notes: a. Any fishing in the mouths of the

Snohomish River by Suquamish was likely the result of invitation from the Snohomish and/or

intermarriage between Snohomish and Suquan1ish. b. If in fact the Suquamish harvested fall and winter

salmon in the Snohomish River mouth, I am aware of no documentation that supports that they fished

for other salmon nor for shellfish in the area. c. Nothing in the reference to fishing in the Snohomish

River mouth supports fishing in the eastern waters of Puget Sound, including, but not limited to,

Saratoga Passage, Possession Sound, Port Gardner, and Port Susan. d. The reference in my report

(Exhibit USA 73) to fishing in the mouth of the Snohomish River was based on utterances of modern


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Regardless of the scope of the term “Puget Sound,” the interpretation of the Suquamish U&A

must be approached as a whole, and its geographic extent is clearly limited. The Court’s 1975 finding

does not purport to include all inland marine waters, but only those described as “from the northern tip

of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the

western side of this portion of Puget Sound and also Hood Canal.” 459 F. Supp at 1048. The language

itself is revealing. First, the term “Puget Sound” does not include all waters north of Vashon Island,

because Hood Canal is listed separately. Second, all of the specific geographic descriptors mentioned –

Vashon Island, [mouth of the] Fraser River, Haro and Rosario Straits, Hood Canal, streams on the west

side – are west of the contested waters. Given that the contested waters are isolated, distinct geographic

features east of the areas specifically named in the U&A finding, the language certainly cannot be said

to unambiguously include those waters.

Moreover, Judge Boldt knew how to use geographic descriptors to include waters east of

Whidbey Island when that was his intent. In the very same proceedings on the very same day, he also

made the Swinomish U&A finding, using specific geographic descriptors – river, island, bay and

passage – to identify waters both east and west of Whidbey Island. 459 F.2d at 1049. Just a few months

later in his next U&A finding Judge Boldt did the same when he made the Tulalip U&A finding. 459 F.

Supp. at 1159. The absence of any similar geographic descriptors indicating waters east of Whidbey

Island in the Suquamish U&A determination indicates an intent to exclude those waters.

The inclusion of the phrase “the streams draining into the western side of this portion of Puget

Sound” raise additional questions about the meaning of the U&A finding. If the phrase refers to the

entire area from the tip of Vashon Island to the Fraser River, as it appears to, then the phrase would

embrace streams outside U.S. waters on Vancouver Island, an absurd result. However, if “Puget Sound”

is taken in its most common meaning as extending only to Admiralty Inlet, the phrase makes perfect

sense, for it then refers only to rivers on the Kitsap Peninsula, close to the Suquamish Reservation.

day informants and not treaty-time informants. None of the documentary records or treaty time

statements supports the idea that the Suquamish fished in the Snohomish River area.


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Judge Boldt also had before him, Dr. Lane’s report of the fisheries of the Suquamish. Ex. USA-

73, Exhibit I hereto. That report clearly shows that the Suquamish had no fisheries whatsoever on the

east side of Puget Sound nor in more northern waters around Whidbey Island, See. Map showing

Suquamish Fishing. Exhibit I hereto. (Ex. USA-73, p. 21-22).

Nor did Suquamish have place names for any sites on the east side. id at 28-43 (Bates No.

00125-00140). Place names are an indicator of familiarity with a particular location and a critical piece

of evidence as to whether a tribe regularly visited such locations. Lane Declaration, August 11, 2011,

paragraph 11. Exhibit C hereto. There are none for the eastern areas. Eastern Puget Sound and the lands

and waters around Whidbey Island. Those areas were terra incognito for the Suquamish. They did not

fish there.

By contrast, Tulalip predecessors had numerous place names in the area and a number of their

villages. See Exhibit J hereto, (Exhibit USA-92) Lane report on Identity, Treaty Status and Fisheries of

the Tulalip Tribes. Appendix #1, pp. 34-39, Bates No. 00327-00332); See also, “Places on Whidbey

Island” Id. at 48-59; Bates No. 00341-00353. Dr. Lane’s report documents forty-one (41) place names in

the vicinity of Everett, including “subeebeda” (No. 1) and a “place for using a dip net.” (No. 3) Id at 34.

She documents one-hundred and twenty-seven (127) place names on or around Whidbey Island,

including “An important village site.” (No. 54) Id at 51, and the site of the settlement called Causano

Oowa’los. (No. 120) Id at 59. It is conceivable that a foreign tribe would have fished in marine waters

while surrounded by Tulalip predecessors. The Suquamish did not Fish there.

On direct examination in the original Suquamish case, Dr. Lane testified about travel only in

waters west or north of Whidbey Island. This point was driven home during the cross-examination of

Dr. Lane by the State’s attorney, who used the map attached to the Suquamish herring regulations to

illustrate the geographic extent of the area in Lane’s testimony.

Q. Is it your opinion that the Suquamish Tribe – are you familiar with the regulation that’s

been filed by the Suquamish Indian Tribe?

A. No.

Q. This is on file with the Court, or I assume it is. And looking at their map attached here,

what has been described as Area Number 2, it is this area, roughly speaking, that


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Mr. Stay [Suquamish attorney] asked you about, the Strait of Juan de Fuca, Haro Strait,

and whatnot?

A. I think he has asked me about what is labeled 1 and 2 on that map.

Q. Both areas 1 and 2. That’s what your comments pertain to?

A. Yes, that is correct.

Q. Well, I am speaking about the San Juan Islands area, what is marked Number 1 there, and

then 2.

* * *

Q. Now, your report on the Suquamish notes that they traveled from their regular area up

north as far as the Fraser River, which would cover area 1 and 2 on this.

A. Part of Area 1.

Q. Part of Area 1, and 2.

Subproceeding 05-3, Order of January 3, 2007 at pp. 11-12. As is plain from a glance at the map used,

the waters east of Whidbey Island are not included in Area 1 or 2. See Map, Exhibit F, hereto attached.

Finally, the court found that Judge Boldt’s description of the Suquamish U&A tracks nearly

verbatim the language in Dr. Lane’s report, demonstrating the judge’s intent to conform the Suquamish

U&A only to those areas documented by Lane.

This court followed the Muckleshoot construct in Subproceeding 05-3 and should do so here. As

the Ninth Circuit noted that it is appropriate for the Court to interpret previous determinations of the

District Court in this case in order to more clearly identify and clarify language concerning usual and

accustomed fishing places. U. S. v. Muckleshoot Indian Tribe, 235 F.3d 429, 433 (9th Cir. 2000). The

Court noted that it was necessary to interpret previous findings of the Court “in light of facts of the case”

and that “unambiguous text is certainly a factor to be considered in this analysis, but it does not

necessarily terminate the inquiry.” Id.

The determination is to be based on the record before Judge Boldt as of April 18, 1975, when he

established the Suquamish’s U&A, but may also include additional evidence if it sheds light on the

understanding that Judge Boldt had at the time. Muckleshoot II, 234 F.3d at 1100 (citing Muckleshoot I,

141 F.3d at 1360).

There is no evidence in the record before Judge Boldt that the Suquamish fished or traveled in

the waters on the eastern side of Whidbey Island, including in Saratoga Passage, Holmes Harbor, Port

Susan, Port Gardner and Possession Sound. Nor for that matter on the west side of the island but on the


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east side of Admiralty Inlet. In addition to Dr. Lane’s testimony and analysis upon which Judge Boldt

relied heavily, in Subproceeding 05-3 the district court also reviewed the April 1975 hearing transcript

for the day after Lane testified to ascertain the judge’s intent. On that occasion the state challenged the

sufficiency of the Suquamish’s prima facie showing that its U&A was as broad as claimed.

Although Lane’s Report showed that several areas on the west shores of Area Four comprised

Suquamish’s on-reservation territory and fishing locations, there was no evidence from Lane or

otherwise that the east shores of Area Four, including Saratoga Passage, were part of Suquamish’s

U&A. See. Discussion, supra. p. 10.

The district judge, who is also the trier of fact, may resolve conflicting inferences and evaluate

the evidence to determine Judge Boldt’s intent. See, e.g., Nunez v. Superior Oil Co., 574 F.2d 1119,

1123-24 (5th Cir. 1978(; In re First Capital Holdings Corp., 179 B.R. 902, 904-05 (Bankr. C.C. Cal.

1995) (Tashima, J.) (so holding).

Nor given the lack of any evidence of Suquamish fishing or travel in these areas, let alone fishing

that was more than “incidental” or “occasional,” is there any basis for supposing that Saratoga Passage

or other areas were intended to be included. Cf. Lummi, 235 F.3d at 452.

In addition, Judge Boldt used specific geographic anchor points in describing other tribes’

U&As. See, e.g., Decision I, 384 F. Supp. at 360, 371 (Lummi and Puyallup U&As); Decision II, 459 F.

Supp. at 1049 (Nooksack, Swinomish and Tulalip U&As). From this it is reasonable to infer that when

he intended to include an area, it was specifically named in his U&A determination.

As the Ninth Circuit noted, the district court’s conclusion did not have the effect of

re-adjudicating Suquamish’s U&A or diminishing it, as the Tribe contended in 05-3, for the Suquamish

never had the right to fish in those areas in the first place.

Geographically, Saratoga Passage, Port Susan, Port Gardner and Possession Sound are enclosed

or inland waters to the east of Whidbey Island. Suquamish did not fish there and Judge Boldt did not

intend to include them in his determination.


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4. Determination of Suquamish Usual and Accustomed Fishing Areas in

Subproceeding 05-3

The Suquamish claim that they fished at the mouth of the Snohomish River which is on the

eastern side of Whidbey Island. While Dr. Lane described some fall and winter fishing at the mouth of

the river, it was “separate and distinct from the spring and summer travels up to the Fraser River.” Dr.

Lane has noted that any Suquamish fishing there would have likely been by invitation. Lane

Declaration, August 11, 2011, p. 4. Exhibit C hereto. Further, the district court noted the Suquamish’s

position that they maintained close relations with the Skagit and Snohomish people, who had fishing

camps on Whidbey and Camano Islands, but thought it would be speculative to conclude this meant that

the Suquamish must necessarily have camped and fished there as well. Order of January 3, 2007, Dkt.

No. 18724, p. 13.

In interpreting what previous statements of the Court meant as to the precise locations of usual

and accustomed fishing places the Ninth Circuit noted that it was necessary to go beyond the plain

language of earlier decisions and examine the evidence used to support a particular finding. Id. In the

present case, there is no evidence of Suquamish fishing on the east side of Puget Sound in the waters

involved in this particular subproceeding.

It is the law of the case that the Court would not have given one tribe “a vast saltwater usual and

& accustomed . . . overlapping usual and & accustomed areas of tribes with documented history of . . .

fishing in the same areas.” Order of Sept. 10, 1999 at 14-15 (U.S. v. Muckleshoot Indian Tribe), aff’d

U.S. v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000). Likewise, it is inconceivable that the

Court would have granted Suquamish a vast marine water usual and accustomed area, purporting to be

more expansive than any other tribe, that also overlaps the usual and accustomed fishing areas of most

other tribes and particularly overlaps “home” waters of Tulalip which are directly adjacent their

reservation homeland.

In a recent subproceeding addressing similar language by Judge Boldt in describing the

Suquamish U&A (“the marine waters of Puget Sound from the northern tip of Vashon Island to the

Fraser River including Haro and Rosario Straits, the streams draining into the western side of this


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portion of Puget Sound and also Hood Canal”), this Court found that Judge Boldt did not intent to

include all of Puget Sound, and excluded certain area to the east of Whidbey Island.

Subproceeding 05-03, affirmed, U.S. v. Washington (Upper Skagit v. Suquamish), 590 F.3d 1020 (9th

Cir. 2010). This determination was made by examining the evidence that was before Judge Boldt,

specifically Dr. Lane’s report on Suquamish fishing areas.

Suquamish’s expansionist history is quite clear. In 1985 Suquamish filed a Request for

Determination in Subproceeding 85-1 to expand their usual and accustomed determination. Suquamish

asserted usual and accustomed fishing areas in Lake Washington, Lake Union, Lake Sammamish, the

Black and Cedar rivers, and the lower White (or Duwamish) River below its junction with the Green

River by virtue of Suquamish fishing in those areas pre-treaty time, and alternatively, their alleged status

as political successor-in-interest to the treaty-time Duwamish. See Order of Feb. 25, 1989 at 15-16

(Conclusion of Law 103). Suquamish eventually abandoned their claims to these waters on the east side

of Puget Sound by virtue of pre-treaty time fishing after the completion of pre-trial discovery. This

portion of their Request For Determination was dismissed with prejudice. Id. at 16 (Conclusion of Law

# 104). Suquamish also lost before the Court on its assertion that it could fish on the east side of Puget

Sound by virtue of its alleged status as political successor-in-interest to the treaty-time Duwamish.

U.S. v. Suquamish, 901 F.2d 722 (9th Cir. 1990).

5. Decisions of the Ninth Circuit

The Ninth Circuit Court of Appeals clearly concurs in its interpretation of Judge Boldt’s finding

that bars Suquamish fishing. In 1990 it noted that the Suquamish hold “usual and accustomed fishing

places in several areas on the west side of Puget Sound” U.S. v. Suquamish Tribe, 901 F.2d 772, 774

(9th Cir. 1990) (emphasis added).

In May of 1985, the Suquamish filed an action to determine their usual and accustomed fishing

places on the eastern side of Puget Sound. U.S. v. Suquamish Tribe 901 F.2d.772, 774 (9th Cir. 1990).


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In reviewing Suquamish claims the Ninth Circuit noted:

“At the time to the Treaty of Point Elliot they did not fish in those areas, which were

the usual and accustomed fishing places Duwamish.” Id.

Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020 (2010), was the appeal of this Court’s

ruling in Subproceeding 05-3. There the Ninth circuit upheld this court’s determination that Judge

Boldt’s original determination did not include the expansive area claimed by Suquamish. (“Upper

Skagit”)

The District Court adhered to a two-step procedure in keeping with our

decisions in Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355

(9th Cir. 1998) (“Muckleshoot I”), Muckleshoot Indian Tribe v. Lummi

Indian Nation, 234 F.3d 1099 (9th Cir. 2000) (“Muckleshoot II”), and

United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000)

(“Muckleshoot III”).

Based on the actual evidence that was before Judge Boldt, this court in Subproceeding 05-3

concluded that Judge Boldt that nothing in the record showed the Suquamish fished on the east side of

Whidbey Island, or traveled through there on their way up to the San Juans and the Fraser River areas.

6. Suquamish Limits its own U & A

Suquamish’s actions to claim larger areas are inconsistent with their previous litigation positions

before the Court in this case. Suquamish is barred from arguing now that the limiting phrase “from the

northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits” entitles it to fish in

all the marine waters of Puget Sound, including areas on the east side of Whidbey Island. In sub-

proceeding 97-1, Suquamish argued that the phrase “Puget Sound” is ambiguous and, with respect to the

Muckleshoot Tribe’s usual and accustomed designation, does not mean all of Puget Sound. See Puy.,

Suq., & Swin., Opposition to Muck. Motion for Summary Judgment (Apr. 8, 1999); Mem. In Support of

Three Tribes’ Motion for Summary Judgment (Mar. 19, 1998); Response to Motion for Preliminary

Injunction (Jan. 28, 1997) (noting that “Puget Sound” is “ambiguous and indefinite” and that at its

“extreme” could erroneously establish “U & A from the furthest, final inlets of deep South Sound, north

to Canada, and west to that ill-defined but far away place where ‘the Sound’ abuts ‘the Strait.’”). After

arguing for a limited interpretation of “Puget Sound” in one proceeding, Suquamish cannot now argue


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against the interpretation they previously advanced to support a new expansive usual and accustomed

area construction that swells to include sheltered waters on the east side of Puget Sound.

Suquamish has also gone so far as to limit its own usual and accustomed area in arguments

before the Court, stating: “In contrast to the facial breadth of Finding 76 [Muckleshoot], the usual and

accustomed findings of other tribes, even those having a predominantly saltwater focus, contain

references to specific place names that anchor their fishing places to definite parts of the marine waters .

. . . (Suquamish U&A finding referring to northern tip of Vashon Island, the Fraser River, and Hood

Canal).” Mem. in Sup. of Swin., Suq., & Puy. Motion for Summary Judgment at 12 (Jan. 15, 1998)

(emphasis added). In 97-1, Suquamish cited their own usual and accustomed determination as an

example of an area limited by geographic anchors. These “anchors,” as Suquamish has called them,

limit Suquamish usual and accustomed fishing areas to the west side of Puget Sound.

There can be no question based upon this record but that Judge Boldt did not intend to include

areas on the east side of Whidbey Island to be included in Suquamish U&A by virtue of Suquamish

travels north. Since Saratoga Passage and other 8A waters are not included on the Lane map of

Suquamish fishing sites, Ex. USA-73, and since the record is devoid of any mention whatever of

Holmes Harbor, or Saratoga Passage, or Area 8A waters, there is no possible basis upon which to

conclude that Judge Boldt intended to include these waters in the Suquamish U&A.

7. Conclusion

When construing a prior judgment, it is the responsibility of the Court to “give effect to the

intention of the issuing court.” Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1359 (9th Cir.

1998). The Suquamish Tribe is impermissibly seeking to expand its usual and accustomed area beyond

the limits of its adjudicated usual and accustomed fishing areas. Suquamish is fishing outside of its

adjudicated usual and accustomed fishing area. Suquamish has no usual and accustomed fishing areas in

the sheltered waters of Salmon area 8A involved in this subproceeding.


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Suquamish continues to authorize fishing in areas outside its adjudicated fishing area in

violation of the Court’s orders. The Court should clarify and interpret the previous orders establishing

Suquamish U & A and hold that there is no evidence in the record, as is discussed above, nor did Judge

Boldt intend that Suquamish have usual and accustomed fishing rights in sheltered waters on the east

side of Puget Sound.

MOTION TO DISMISS COUNTER-CLAIM

In its Answer to the Tulalip Request for Determination, the Suquamish Tribe also asserted as

“Affirmative Defenses” the following:

No. 6. Breach of the Muckleshoot, Suquamish and Tulalip Settlement

No. 8. A request that the Suquamish is entitled to present evidence and obtain a Court

adjudication of its treaty times fishing in the waters generally known as DFW 7 Area 8A. See

Suquamish Tribe’s Answer, Affirmative Defenses and Counter-Claim for Breach of MST Settlement

Agreement, dated January 10, 2011, Dkt. No. 139.

These “Affirmative Defenses” were then rolled into a “Counter-Claim for Breach of Settlement

Agreement.” Id. at 16.

Pursuant to FRCP 12 (b) (6), Tulalip moves to dismiss this counter-claim for failure to state a

claim upon which relief can be granted, or in the alternative for summary judgment. FRCP 56 (a).

In addressing a motion to dismiss for failure to state a claim upon which relief can be granted

under FRCP § 12(b)(6), courts “must determine whether the facts alleged in the complaint, taken as

true, entitle the plaintiff to a legal remedy.” Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir.

2012) (quoting Brooks v. Dunlop Mfg. Inc., No. C 10–04341 CRB, 2011 WL 6140912, at *3 (N.D.Cal.

Dec. 9, 2011)). Two recent Supreme Court cases elucidate that pursuant to FRCP 8 (a) (2), a complaint

must contain more than conclusory allegations to survive a motion to dismiss under Rule 12(b)(6) or

judgment on the pleadings.

A pleading must include a “short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Supreme Court recently explained that where a petition’s

“well-pleaded facts do not infer more than the mere possibility of misconduct, the complaint has


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alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.”’ Ashcroft v. Iqbal, 556 U.S.

662, 679, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). A pleading

that merely contains ‘“labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of

action will not do.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127

S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007)).

Under Fed.R.Civ.P. 12(b)(6), this Court may dismiss a complaint if it fails to “state a claim upon

which relief can be granted.” In order to survive a Rule 12(b)(6) motion to dismiss, factual allegations

in the pleading “must be enough to raise a right to relief above the speculative level . . . on the

assumption that all the allegations in the complaint are true . . . .” Twombly, 550 U.S. at 555. While

courts must accept all of the allegations in a complaint as true, such a rule does not apply to legal

conclusions. Iqbal, 556 U.S. at 678-79. A complaint must “contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at

570). The Iqbal Court clarified that “[a] claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. There must be more than “a sheer possibility that a defendant has acted

unlawfully.” Id.

Rule 12(c) allows a party to move for judgment on the pleadings “[a]fter the pleadings are

closed—but early enough not to delay trial ….” Judgment on the pleadings is rightly granted when,

taking all the factual allegations in the complaint as true, ‘“there is no issue of material fact in dispute,

and the moving party is entitled to judgment as a matter of law.’” Chavez 683 F.3d at 1108 (quoting

Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.2009)). The analyses under Rule 12(c) and 12(b)(6) are

basically identical because under either rule courts must make the same determination: “whether the

facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.” Id. (quoting

Fleming, 581 F.3d at 925).

Recent U.S. Supreme Court cases raise serious issues about the adequacy of the Suquamish

counter-claim. In 2007, the Supreme Court held that a class action lawsuit against major

telecommunication companies must be dismissed under Rule 12(b)(6) because the complaint did not


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allege sufficient factual allegations to entitle the plaintiffs to relief. Twombly, 550 U.S. at 557. There,

the plaintiffs alleged that the defendant companies entered into a conspiracy to maintain higher rates,

and the complaint stated parallel conduct as evidence of the agreement. Id. The Court held that the

allegation of parallel conduct was insufficient because rational business decisions may have led the

companies to the same behavior, not necessarily a conspiracy. Id. at 566-69. The Twombly complaint

did not provide enough facts to make the alleged conspiracy facially plausible.

The Supreme Court also used Twombly to abrogate the previous holding of the Conley case that

“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to

relief.” See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957) abrogated by

Twombly, 550 U.S. at 562-63. The Court found that such a broad standard allowed wholly conclusory

allegations to survive motions to dismiss or judgments on the pleadings. Twombly, 550 U.S. at 560-62.

Thus, the Court stated that Conley’s famous “no set of facts” language “has earned its retirement.”

The phrase is best forgotten as an incomplete, negative gloss on

an accepted pleading standard: once a claim has been stated

adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint.” Id. at 562-63.

Just two years after Twombly, the Supreme Court clarified that its pleading standard

applies to all civil cases, not just antitrust actions. Iqbal, 556 U.S. at 684. In Iqbal, the Court held that a

plaintiff’s complaint in a discrimination lawsuit was insufficient because it failed to plausibly suggest

the defendant’s discriminatory mindset, a necessary element of the cause of action. Id. at 683. The

Court further elucidated the Twombly standard: “[w]hen there are well-pleaded factual allegations, a

court should assume their veracity and then determine whether they plausibly give rise to an entitlement

to relief.” Id. at 679. While a complaint must put the defendant on notice, bare notice pleading will not

suffice today. Twombly and Iqbal demand pleading facts that support the cause of action such that the

court may reasonably infer that the defendant is liable for the unlawful actions alleged. The Suquamish

cross-complaint is legally insufficient. In its answer and counter-claim Suquamish makes a number of


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statements that are incorrect or of obscure relevance. It contains a mish-mash of ideas and claims which

culminate in a kind of “contingency” counter-claim, which is evidently supposed to leap into being if the

Court rules a certain way on Motions for Summary Judgment.

The Suquamish ask that if the court finds there is no court record of Suquamish usual and

accustomed fishing grounds in the marine areas identified in the Tulalip Amended Request, for an order

pursuant to paragraph 25(a)(6) of August 11, 1993 Order and the court’s continuing jurisdiction granting

Suquamish the right to present evidence and obtain a court adjudication establishing its treaty time

presence in such areas.

In its counter-claim Suquamish alleges that the Muckleshoot, Suquamish, Tulalip Agreement

(MST) was entered into as part of a Tulalip Request for Determination wherein “Tulalip sought to

expand the Court’s 1975 provisional findings of its usual and accustomed fishing grounds and stations.”

Counter-Claim, p. 17. But that is not what the agreement says. The MST agreement clearly states that

Suquamish agrees to forbear opposition to the Tulalip “request for final determination of its usual and

accustomed fishing grounds. . .” not expansion. MST Agreement supra at 2. (emphasis supplied).

Suquamish also alleged that in the MST Agreement Tulalip agreed to “protect existing treaty

reserved usual and accustomed fishing grounds and stations (U&A) of Suquamish in central Puget

Sound.”MST Agreement, June 13, 1983, p. 2. Exhibit G hereto attached. However, it should be clear

that “protecting” Suquamish usual and accustomed fishing areas does not mean abstaining from

challenging Suquamish unilateral expansion of its fishing places. And, by its own admission, and the

terms of the agreement, such so called “protection” relates to “central Puget Sound.” This case,

however, is not about central Puget Sound, but rather about the northern enclosed waters of Port Susan,

Possession Sound, Port Gardner, and Saratoga Pass.

Suquamish alleges that both before and since April 1975, Suquamish has fished and continued to

fish in numerous marine waters including the harbors, bays, sounds, and other marine areas identified by

Tulalip in its Request for Determination. This is factually incorrect. As noted throughout this

memorandum, there is no evidence in the record of treaty times fishing by Suquamish in those areas.

Further Suquamish did not fish there after the Boldt decision in 1974, nor in 1983 nor for 10 years


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thereafter. See Declarations of McHugh October 26, 2012, and Rawson October 26, 2012 attached

hereto as Exhibits D and E.

This allegation of continuous fishing is false. In 1983 when the MST Agreement was executed,

there is no evidence of material Suquamish fishing in Area 8A. Declaration of Kit Rawson, ¶ 5, dated

10-26-2012; Declaration of Mike McHugh, dated 10-26-2012. In addition, there is no evidence of

significant Suquamish fishing in Area 8A for the next ten years. Id. It was not until 2003 that

Suquamish began its unilateral efforts to expand its fishing places through actual fishing.

Suquamish also alleges that Tulalip violated and breached the MST Settlement Agreement by

filing the current Amended Request for Determination. Counter-Claim, ¶ 10, p. 18. This is a spurious

argument. Tulalip never promised to refrain from challenging the Suquamish fishing places if

Suquamish, in fact, expanded those places and began fishing in areas where they had never fished before

and which appeared to be outside the judicially determined area. Tulalip never agreed that Suquamish

had fishing rights in Area 8A and, of course, the argument that Tulalip cannot challenge Suquamish for

fishing outside its 1975 court adjudicated places begs the question of exactly what was included in that

1975 Determination. It is Tulalip’s position, obviously, that the areas in closed waters of Area 8A,

including Possession Sound, Port Gardner, Port Susan, and Saratoga Passage are not within the 1975

Court adjudicated areas. Suquamish evidently also believed this for twenty years after the Boldt

decision.

In its Request for Relief, Suquamish seeks a judgment that it “has fished at all times relevant to

this subproceeding in its court adjudicated treaty reserved usual and accustomed fishing grounds.”

Cross-Claim, p. 19. Whether it has, we don’t know what “all times relevant” means. Does it mean at

treaty times, after 1975 but before 2003, or what? This statement also begs the question of exactly

where those places are, which is the subject of this subproceeding. And, this statement is also factually

incorrect as to fishing between 1975 and 2003. See Declarations of McHugh and Rawson, Exhibits D &

E hereto.

Finally, Suquamish asks the Court that if it finds no court record of Suquamish usual and

accustomed fishing grounds in the subject areas that it then be allowed the right to present evidence and


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obtain a court adjudication establishing its treaty time presence in such areas.” Suquamish Cross-Claim

of January 1, 2011, p. 18. Dkt. No. 139. This is the “contingency counter-claim” and amounts to a

complaint for a new action to expand U&A beyond what has already been adjudicated. It is essentially a

“do-over” request and is inappropriate in this context and may be barred by preclusion jurisprudence. If

Suquamish wants to bring a new case, it should follow the rules of revised paragraph 25 of the Final

Decision and the matter should be properly presented to the Court as to whether or not such a remedy is

even available given principles of finality that would apply. A new case would require greater precision

in its pleading and a new discovery and trial schedule.

Further, as noted above, as a complaint, it falls short of recent U.S. Supreme Court rulings on

the sufficiency of allegations for Rule 8(a) and Rule 12 (b) (6) purposes.

I. Claim Preclusion Bars Suquamish Claims to U&As in Penn Cove and Saratoga

Passage.

The doctrine of claim preclusion, formerly known as res judicata, bars a claim in a subsequent

case if that same claim reached final judgment in a previous action involving the same parties (or their

privies). In re International Nutronics, Inc., 28 F.3d 965, 969 (9th Cir. 1994). In Subproceeding 05-3

final judgment was entered that Suquamish has no U&As in Areas 24A and 24C. Subproceeding 05-3,

Dkt. No. 199; Jannetta Dec. 24. The Ninth Circuit affirmed that judgment. Suquamish, Swinomish and

Tulalip were all parties to Subproceeding 05-3 and Suquamish actively defended the claims against it.

Since Saratoga Passage and Penn Cove are both within Area 24C, see attached map, Exhibit B, claim

preclusion applies to them in this sub-proceeding.

II. Issue Preclusion Bars Suquamish U&As in Holmes Harbor.

We agree with the views of the Swinomish Tribe on this issue as well as other 8A areas. Holmes

Harbor, an appendage of Saratoga Passage, is part of the waters east of Whidbey Island. However,

Holmes Harbor is its own separate Shellfish Management Catch and Reporting Area, Area 24D, and so

was not a part of the claims brought in Subproceeding 05-3.


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The operative preclusion doctrine applies to Holmes Harbor in this case is issue preclusion,

formerly known as collateral estoppel. Issue preclusion focusses on the issues, as opposed to the claims,

litigated in a prior case. These issues may be factual or legal. 18 Moore’s, op. cit. §132.01[2]. For issue

preclusion, or collateral estoppel to apply, “the issue involved must have been litigated and decided in

the first case.” Kamilche Co. v. U.S., 53 F.3d 1059, 1062 (9th Cir. 1995).

The preclusive issues decided in Subproceeding 05-3 that apply to Holmes Harbor in this case

are:

(1) The factual issue that there was no evidence in the record before Judge Boldt when he

made the Suquamish U&As determination that Suquamish fished or traveled through the waters east of

Whidbey Island, Subproceeding 05-3, Dkt. No. 198, pp. 9, 12, 15; Jannetta Dec. 9. 12. 15; Upper Skagit,

590 F.3d at 1025;

(2) The factual issue that Judge Boldt intended to exclude the waters east of Whidbey Island

from Suquamish U&As by his reference to the map used in describing Suquamish U&As; Upper Skagit,

590 F.3d at 1025; see map p. 11; and

(3) The conclusion based upon these facts that Judge Boldt did not intent to include the

waters east of Whidbey Island in Suquamish U&As. , Subproceeding 05-3, Dkt. No. 198, pp. 14, 15;

Jannetta Dec. 14-15; Upper Skagit, 590 F.3d at 1025.

In Kamilche the Ninth Circuit identified four factors to consider in determining whether issue

preclusion applies. 53 F.3d at 1062. All of the factors favor the application of issue preclusion in this

case.

(1) Is there a substantial overlap between the evidence advances in the second proceeding

and the advanced in the first?

Here, the evidence—indeed, the universe of evidence—is exactly the same in the two cases. The

evidence of Judge Boldt’s intent is limited to the record before Judge Boldt at the time the U&As

decision was made. Exactly the same evidence applies to Area 24D as to Areas 24A and 24C. In

addition, the finding that there is no evidence in the record before Judge Boldt that Suquamish fished or

traveled through Areas 24A and 24C of necessity applies to Area 24D as well.


TULALIP MOTION FOR

SUMMARY JUDGMENT




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(2) Is the same rule of law involved in the prior proceeding?

Yes. The Muckleshoot line of cases applied to determining Judge Boldt’s intent is as applicable

to U&As in Area 24Aand 8A & 8D as it was in Subproceeding 05-3, and nothing in the law has changed

in the two years since the Ninth circuit decided the appeal in Subproceeding 05-3.

(3) Could pretrial preparation and discovery in the first proceeding reasonably be expected to

have embraced the matter to be presented in the second?

The universe of relevant facts and documents is exactly the same in Subproceeding 05-3 as it is

in this case. Moreover, any evidence that Suquamish fished or traveled in Holmes Harbor or through

Area 8A would have been highly relevant to Subprocedding 05-3 because that evidence would show that

Suquamish traveled through Area 24C.

(4) How closely related are the claims?

The claims are identical save for the fact that they involve different Areas adjacent to one

another in the water east of Whidbey Island.

Since issue preclusion applies, Suquamish cannot now claim a right to relitigate the dispositive

issues decided in Subproceeding 05-3. Issue preclusion compels the Court to rule in this case that

Suquamish does not have U&As in neither Area 24D nor Area 8A.5

CONCLUSION

The decision and the resolution of the factual and legal issues in Subuproceeding 05-3

preclude litigation in this sub-proceeding of whether Suquamish has U&As in Penn Cove, Saratoga

Passage, and Holmes Harbor, and Area 8A. Judgment should be entered declaring that Suquamish does

not have U&As in those waters based upon the preclusive effect of Subproceeding 05-3.

5 The result would be the same if the law of the case doctrine applied here. Under this doctrine, a court is generally precluded

from revisiting an issue previously decided in the same case by the court or a higher court. U.S. v. Lummi Indian Tribe, 235

F.3d 443, 452 (9th Cir. 2000). In Lummi the Ninth Circuit applied the doctrine to a prior district court ruling in the same sub-

proceeding (Subp. 89-2). Id. Swinomish believes that the law of the case doctrine does not apply here because the previous

decision was the final decision in a different sub-proceeding. The Ninth Circuit affirmed the district court, now the law of the

circuit, only underscores the point. Tulalip agrees.


TULALIP MOTION FOR

SUMMARY JUDGMENT




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REQUESTS FOR RELIEF

For the foregoing reasons, the Tulalip Tribes requests the following relief:

A. A declaration that the Suquamish Tribe’s adjudicated usual and accustomed fishing areas

are limited to the west side of Puget Sound as demonstrated by the evidence submitted to the District

Court and as intended by the court in its 1975 ruling.

B. A declaration that the Suquamish Tribe does not have adjudicated usual and accustomed

fishing grounds and stations in the marine waters of Saratoga Pass, Holmes Harbor, Port Susan,

Possession Sound, or Port Gardner, and on the west side of Whidbey Island, including Useless Bay,

Mutiny Bay and Admiralty Bay.

C. A declaration that the Suquamish Tribe has impermissibly sought to expand its fishing

areas by seeking to fish on the east side of Puget Sound in the marine waters listed above in

paragraph B.

D. An order requiring the Suquamish Tribe to adhere to its adjudicated usual and

accustomed fishing areas on the west side of Puget Sound and barring the Suquamish Tribe from

attempting to expand its adjudicated usual and accustomed fishing areas by authorizing any fisheries in

the marine waters listed in paragraph B above.

E. An order dismissing the Suquamish counter-claim for failure to state a claim for which

relief can be granted.

F. An order awarding the Tribes their cost of suit and attorneys’ fees to the extent

authorized by law.

G. Other such relief as the Court may deem just and proper.


TULALIP MOTION FOR

SUMMARY JUDGMENT




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DATED this 26th day of October, 2012.

Respectfully Submitted,

MORISSET, SCHLOSSER, JOZWIAK & SOMMERVILLE

By: /s/Mason D. Morisset

Mason D. Morisset, WSBA # 00273

Email: [email protected]

1115 Norton Building, 801 Second Avenue

Seattle, Washington 98104-1509

Tel: 206-386-5200

Fax: 206-386-7388

Attorneys for the Tulalip Tribes


mailto:[email protected]

MOTION FOR DECLARATORY JUDGMENT




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CERTIFICATE OF SERVICE

I hereby certify that on October 26, 2012, I electronically filed the foregoing Motion for

Summary Judgment and memo in support with the Clerk of the Court using the CM/ECF system which

will send notification of such filing to the parties registered in the Court CM/ECF system.

DATED: October 26, 2012.

/s/Mason D. Morisset

T:\WPDOCS\0075\97505\05-4-Tulalip RFD re Suquamish\05-4 Pleadings DRAFT\Motion and Memorandum for Summary Jdgment re Tulalip Amended RFD re Suquamish U A Areasm and Motion to

Dismiss Suquamsih Counter-claim re MST Agreement 12.docx

kfn:10/26/12


the honorable ricardo s. martinez · 2013. 7. 31. · note date: december 7, 2012 ... penn cove,...

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