the honorable ricardo s. martinez · the honorable ricardo s. martinez united states district court...

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

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.

No. C70-9213 Subproceeding 19-1 SWINOMISH INDIAN TRIBAL COMMUNITY’S MOTION FOR SUMMARY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF Noting Date: July 31, 2020 Oral Argument Requested

Case 2:70-cv-09213-RSM Document 22200 Filed 05/29/20 of 26

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No. C70-9213, Subp. 19-1 Office of Tribal Attorney SITC MOTION FOR SUMMARY JUDGMENT SWINOMISH INDIAN TRIBAL COMMUNITY 1 11404 Moorage Way LaConner, Washington 98257 TEL 360/466-3163; FAX 360/466-5309

I. MOTION

The Swinomish Indian Tribal Community (Swinomish) moves for summary judgment

declaring that the usual and accustomed fishing places (U&A) of the Lummi Nation (Lummi) do

not include the secluded waters to the east of Whidbey Island designated by the State as Shellfish

Region 2 East (Region 2E). This region encompasses five named bodies of water, Saratoga

Passage (Shellfish Management Area 24A), Port Susan (24B), Skagit Bay (24C), Holmes Harbor

(24D), and Possession Sound (26AE), and is depicted on p. 20 of this Motion. Swinomish also

moves for permanent injunctive relief enjoining Lummi from fishing or authorizing its members

to fish for any species in Region 2E.

The controlling and dispositive issue in this case is whether Judge Boldt intended to include

Region 2E in Lummi’s U&A in light of the record before him at the time the decision was made.

Because there is no dispute regarding that record, summary judgment is appropriate.

II. INTRODUCTION

Nearly half a century ago, Judge Boldt specifically determined the geographic scope of

Lummi’s U&A. In part, his determination describes Lummi’s U&A as “the marine areas of

Northern Puget Sound from the Fraser River south to the present environs of Seattle, and

particularly Bellingham Bay.” United States v. Washington, 384 F.Supp. 312, 360 (W.D. Wash.

1974) (Final Decision No. 1).


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As this Court is well aware, subsequent history has revealed this language to be ambiguous

to an unfortunate degree.1 This subproceeding requires the Court to consider the geographic scope

of Lummi’s U&A yet again, this time with respect to Lummi’s claimed right to fish in the secluded

waters of Region 2E. Under the familiar two-step test developed in the Muckleshoot trilogy, see

infra at p. 5 the question before the Court is whether, despite the ambiguity in Lummi’s U&A

determination, Judge Boldt nevertheless intended to include Region 2E in Lummi’s U&A.

The record in this case indicates that he did not. Judge Boldt carefully reviewed the

extensive evidence and other materials presented prior to Final Decision No. 1 and determined

that the areas where Lummi customarily fished at treaty time were located in and around

Bellingham Bay, the Nooksack River, and other areas to the north and west of Whidbey Island.

Accordingly, he did not include the secluded waters of Region 2E in Lummi’s U&A determination.

As we demonstrate below, there is simply no evidence in the record before Judge Boldt to support

a conclusion that Lummi’s U&A includes Region 2E.

III. JURISDICTION

This Court has jurisdiction over the parties and the subject matter under Paragraph 25(a)(1)

of the Permanent Injunction because this case requires the Court to determine whether Lummi’s

repeated attempts to open treaty fisheries in Region 2E, which are described in greater detail below,

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, 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 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 are discussed below.


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are in conformity with Final Decision No. 1 and the Permanent Injunction. See, e.g., Muckleshoot

Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1360 (9th Cir. 1998) (Muckleshoot I).

IV. STATEMENT OF THE CASE

As this Court recently found, in the nearly half century since Final Decision No. 1, Lummi

has never fished in Region 2E and “has largely not pursued any such rights for 45 years.” Order

Granting Temporary Restraining Order, Subp. 19-1 Dkt No. 37 (Main Case Dkt. No. 22114) at 6

(Nov. 13, 2019) (TRO); see also id. at 3, 6-7, 11 (EH003, EH007-009).2 However, beginning in

2003 and especially during the last two fishing seasons, Lummi has made concrete threats or taken

overt action to establish new treaty fisheries in Region 2E. TRO at 1-2, 4-5 (EH001-002, EH004-

005); Declaration of Matthew L. Nelson, Subp. 19-1 Dkt. No. 11 (Main Case Dkt. No. 22079) at

¶ 14 (Nov. 4, 2019) (EH014). Lummi has made these threats and taken these actions although it

has not followed the procedures established by this Court to clarify its U&A with respect to these

waters or to expand its treaty fishing into these waters. See, e.g., United States v. Washington, 459

F. Supp. 1020, 1068-69 (W.D. Wash. 1978). Following two rounds of emergency motions practice

caused by Lummi’s attempts to expand its treaty fisheries into Region 2E during the 2018 and

2019 fishing seasons, Swinomish, the Tulalip Tribes, and the Upper Skagit Indian Tribe

(collectively, the Region 2E Tribes) were granted leave to file this subproceeding.

V. ARGUMENT

A. Summary Judgment Standards and Analytical Framework

The Court “shall grant summary judgment if the movant shows that there is no genuine

2 “EH __” refers to Bates stamped pages in the Exhibits to the Declaration of Emily Haley filed with this Motion.


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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). Because the dispositive issue in this case is whether Judge Boldt intended to include

Region 2E in Lummi’s U&A in light of the record before him and there is no dispute regarding

the record, summary judgment is appropriate.

In the Muckleshoot trilogy of cases, the Ninth Circuit developed a two-step analytical

framework for interpreting Judge Boldt’s U&A findings in 25(a)(1) proceedings. First, the Court

must consider whether the language of the U&A finding is ambiguous by considering the language

of the finding itself and any evidence that indicates the contemporary understanding of its meaning.

Second, if it is, the Court must resolve the ambiguity by determining Judge Boldt’s intended

meaning. See, e.g., Muckleshoot I, 141 F.3d at 1358-60; Muckleshoot Indian Tribe v. Lummi

Indian Nation, 234 F.3d 1099, 1100-1101 (9th Cir. 2000) (Muckleshoot II); United States v.

Muckleshoot Indian Tribe, 235 F.3d 429, 433 (9th Cir. 2000) (Muckleshoot III). The best evidence

of Judge Boldt’s intent is the specific evidence he cited. Id. at 434.

In a 25(a)(1) proceeding, it is the moving party’s burden to demonstrate that Judge Boldt’s

U&A finding is ambiguous or that Judge Boldt intended something other than its apparent

meaning. If it is, the moving party must show that there was no evidence before Judge Boldt to

support a conclusion that he intended to include the disputed waters. See Upper Skagit Indian Tribe

v. Washington, 590 F.3d 1020, 1023 (9th Cir. 2010). While the Court on summary judgment

motions should normally draw all inferences supported by the evidence in favor of the non-moving

party, in a 25(a)(1) proceeding the Court “may resolve conflicting inferences and evaluate the

evidence to determine Judge Boldt’s intent.” Id. at 1025 n.9.


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B. U&A Standards

In Final Decision No. 1, Judge Boldt defined U&A as “every fishing location where

members of a tribe customarily fished from time to time at and before treaty times….” 384 F.Supp.

at 332. These are areas that a tribe fished on a “usual and accustomed” basis, not an “occasional

or incidental” basis. Id. at 356. As a result, “occasional and incidental trolling [while traveling]

was not considered to make the marine waters traveled thereon the [U&As] of the transiting

Indians.” Id. at 353; see also United States v. Washington, 626 F.Supp. 1405, 1531 (W.D. Wash.

1985).

This Court has continued to apply these rules of law ever since Final Decision No. 1

established them,3 and the Ninth Circuit has affirmed these principles on a number of occasions.

It has held that fishing must have occurred “with regularity” rather than on an “isolated or

infrequent” basis to give rise to U&As. Muckleshoot III, 235 F.3d at 434. And it has held that even

when travel for purposes other than fishing was accompanied by incidental trolling, it did not

establish U&As along the travel route absent other evidence of fishing activity.4

C. The Lummi U&A Finding is Ambiguous Under the first step of the Muckleshoot test, there is no question that the Lummi U&A

finding is ambiguous. Judge Boldt “‘specifically determine[d]’ the location of Lummi's [U&A],

3 See, e.g., United States v. Washington, 20 F.Supp.3d 986, 1039-54 (W.D. Wash. 2013), aff’d, Tulalip Tribes v. Suquamish Indian Tribe, 794 F.3d 1129 (9th Cir. 2015); United States v. Washington, 20 F.Supp.3d 828, 831-41 (W.D. Wash. 2007), aff’d Upper Skagit, 590 F.3d 1020. 4 See, e.g., United States v. Lummi Indian Tribe, 841 F.2d 317, 320 (9th Cir. 1988) (“[w]hile travel through an area and incidental trolling are not sufficient to establish [U&As], frequent travel and visits to trading posts may support other testimony that a tribe regularly fished certain waters”) (citing Final Decision No. 1, 384 F.Supp. at 353; most emphasis added); Upper Skagit, 590 F.3d at 1022 (customary fishing activity “does not include ‘occasional and incidental’ fishing or trolling incidental to travel”) (citing Final Decision No. 1, 384 F.Supp. at 353).


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albeit using a description that has turned out to be ambiguous.” Muckleshoot I, 141 F.3d at 1360.

The Ninth Circuit has so ruled at least four times, and this Court has so ruled on a number of

occasions.5 We therefore turn to the second step of the Muckleshoot test and the heart of the matter.

D. Judge Boldt Did Not Intend to Include Region 2E in Lummi’s U&A

As explained below, there is nothing in the text of the Lummi U&A finding, any of the

evidence cited by Judge Boldt, or anything else in the record that would support a conclusion that

Lummi customarily fished the secluded waters of Region 2E or frequently traveled to or through

Region 2E for purposes of fishing at or before treaty time. As a result, Judge Boldt could not have

intended to include the disputed waters in Lummi’s U&A.

1. The Plain Language of FF 45 and FF 46 Does Not Support Lummi U&A in Region 2E

Judge Boldt specifically determined Lummi’s U&A as follows:

[FF] 45. Prior to the Treaty of Point Elliott … [the Lummi] maintained prosperous communities by virtue of their ownership of lucrative saltwater fisheries. The single most valuable fish resource was undoubtedly the sockeye, which the Lummis were able to intercept in the Straits on the annual migration of the sockeye from the ocean to the Fraser River. Lummi Indians developed a highly efficient technique, known as reef netting, for taking large quantities of salmon in salt water…. 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 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 and basketry traps on Whatcom Creek. They trolled the waters of the San Juan Islands for various species of salmon.

[FF] 46. In addition to the reef net locations listed above, the usual and accustomed fishing places of the Lummi Indians at treaty times included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of

5 See, e.g., Muckleshoot I, 141 F.3d at 1359-60; United States v. Lummi Indian Tribe, 235 F.3d 443, 449 (9th Cir. 2000) (Lummi I); United States v. Lummi Nation, 763 F.3d 1180, 1187 (9th Cir. 2014) (Lummi II); United States v. Lummi Nation, 876 F.3d 1004, 1008-1009 (9th Cir. 2017) (Lummi III); United States v. Washington, 18 F.Supp.3d 1155, 1157 (W.D. Wash. 1990).


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Seattle, and particularly Bellingham Bay. Freshwater fisheries included the river drainage systems, especially the Nooksack, emptying into the bays from Boundary Bay south to Fidalgo Bay.

Final Decision No. 1, 384 F.Supp. at 360 (citations omitted; emphasis added).

Even before examining the evidence in the record, the plain language of Lummi’s U&A

determination raises “serious questions as to the geographic boundaries of the Lummi U&A, and

whether the Lummi has U&A in Region 2 East.” See TRO at 7 (EH007). In FF 45 and FF 46,

Judge Boldt listed at least 11 named geographic features or bodies of water where Lummi

customarily fished prior to the Treaty.6 Every one of them is to the north or west of Region 2E

(and many – Point Roberts, for example – are significantly to the north and west of Region 2E).

Conversely and perhaps more importantly, despite taking pains to carefully document the specific

locations where Lummi and other tribes fished and traveled for purposes of fishing at treaty time,

see Final Decision No. 1, 384 F.Supp. at 330, 348, Judge Boldt did not list a single named

geographic feature or body of water in Region 2E. As the Ninth Circuit has noted, this alone

strongly suggests that Judge Boldt did not intend to include Region 2E in Lummi’s U&A, because

“it is the specific, rather than the general,” that determines Judge Boldt’s intent. Lummi I, 235 F.3d

at 451. “Had he intended to include [Region 2E] in the Lummi's [U&A] he would have used [those]

specific term[s].” Id. at 452; see also TRO at 6 (EH006).

More generally, FF 45 and 46 highlight two critical points regarding the pre-treaty Lummi,

each of which is well supported in the record and discussed in more detail below: (1) the

6 These are: “the Straits,” which read in context and in light of the underlying Lane report clearly refers to Haro and Rosario Straits, see USA-30 at 11, 24, 29 (EH036, EH051, EH057); reefnet sites on Orcas Island, San Juan Island, Lummi Island, Fidalgo Island, Point Roberts, and Sandy Point; the Nooksack River; Whatcom Creek; Bellingham Bay; and rivers draining to Puget Sound from Boundary Bay south to Fidalgo Bay.


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overarching importance of Lummi’s reefnet fisheries relative to all of its other fishing activity, and

(2) the degree to which Lummi’s pre-treaty activities were centered in and around Bellingham Bay

and the Nooksack River. With respect to the former, this Court has previously held that “[t]he

singular importance of reefnetting to the Lummi was acknowledged by Judge Boldt in FF 45, and

the complete absence of any indicated sites from [the disputed waters] is significant.” Order on

Motions for Summary Judgment, Subp. 11-2 Dkt. No. 210 (Main Case Dkt. No. 21067) at 18 (July

17, 2015) (EH016). Here, Judge Boldt did not identify any Lummi reefnet location in Region 2E,

which is strong evidence that Judge Boldt did not intend to include the area in Lummi’s U&A.

With respect to the latter, this Court has concluded that Judge Boldt’s “pointed reference to

Bellingham Bay … is significant.” Id. at 21. The fact that Bellingham Bay is “far to the north” and

west of Region 2E also indicates that Judge Boldt did not intend to include Region 2E in Lummi’s

U&A.7

Finally, because neither named geographic features nor bodies of water in Region 2E are

addressed anywhere in Final Decision No. 1, there are no contemporaneous linguistic clues from

which to divine Judge Boldt’s intent. See Lummi I, 235 F.3d at 452. However, the fact that Judge

Boldt specifically named a number of geographic features and bodies of water in Region 2E in his

U&A findings for other tribes, including Swinomish, just several months after Final Decision No.

1 makes it “reasonable to infer that when [Judge Boldt] intended to include an area, it was

7 Although this order was reversed by the Ninth Circuit, Lummi III, 876 F.3d 1004, it was not because the court disagreed with this Court’s reasoning regarding the inferences to be drawn from Judge Boldt’s emphasis on Lummi reefnetting or his pointed reference to Bellingham Bay. Instead, the Ninth Circuit found that those inferences did not carry the day in that subproceeding because there was record evidence that Lummi actually fished in the disputed waters: “Dr. Barbara Lane tied travel in th[e] corridor [to the west of Whidbey] to fishing.” Id. at 1010. Here there is no evidence of Lummi fishing in or traveling to or through Region 2E for purposes of fishing, and this Court’s reasoning regarding the inferences to be drawn from these aspects of FF 45 and 46 remains sound.


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specifically named in the U&A.” Upper Skagit, 590 F.3d at 1025 (citing Lummi I, 235 F.3d at 451-

52). His failure to specifically name any locations in Region 2E in Lummi’s U&A when he could

and did include them in U&A findings issued shortly thereafter suggests that Judge Boldt did not

simply overlook these waters in FF 45 and 46 or intend to include them via an ambiguous reference

to “Northern Puget Sound,” but instead intended to exclude them because the evidence did not

support their inclusion. See id.; compare Final Decision No. 1, 384 F.Supp at 360 (FF 45 and 46)

with United States v. Washington, 459 F. Supp. at 1049 (FF 6).

2. None of the Evidence Cited by Judge Boldt Supports Lummi U&A in Region 2E

For the reasons above, the plain language of FF 45 and 46 does not support Lummi U&A

in Region 2E. We turn next to the specific evidence Judge Boldt cited to support FF 45 and 46,

which is the most relevant evidence of Judge Boldt’s intent. Muckleshoot III, 235 F.3d at 434. As

explained below, there is nothing in the evidence cited by Judge Boldt to support a conclusion that

Lummi customarily fished in Region 2E or frequently traveled to or through Region 2E for

purposes of fishing at treaty time.

USA-20

The primary evidence Judge Boldt relied upon were two reports prepared by Dr. Barbara

Lane.8 The first, USA-20, was a general anthropological report entitled “Political and Economic

Aspects of Indian-White Culture Contact in Western Washington in the Mid-19th Century” which

8 In Final Decision No. 1, Judge Boldt explained that he held Dr. Lane, her work, and her ultimate conclusions in extremely high regard. 384 F.Supp. at 350. This Court has subsequently found that where Judge Boldt relied on information contained in Dr. Lane’s reports, he intended to adopt her underlying definitions, reasoning, and meaning. See, e.g., United States v. Washington, 19 F.Supp.3d 1184, 1195 (W.D. Wash. 1995).


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provided much of the general background for Final Decision No. 1. In the portion of the report

cited by Judge Boldt to support FF 45 and 46, Dr. Lane concluded that:

1. [The pre-treaty Lummi] lived in the area of Bellingham Bay and near the mouths of the [Nooksack] river emptying into it. 3. 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 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 systems draining into Bellingham Bay.

USA-20 at 39 (EH023). These are clearly the basis for Judge Boldt’s findings regarding the

overarching importance of Lummi’s reefnet fisheries and the degree to which Lummi’s pre-treaty

activities were centered in and around Bellingham Bay and the Nooksack River. Notably, neither

the page of USA-20 cited by Judge Boldt nor any other part of USA-20 references Lummi reefnet

locations in Region 2E, other Lummi fishing activities in Region 2E, or Lummi travel to or through

Region 2E for any purpose, let alone for the purpose of fishing.

USA-30

The second and much more detailed report upon which Judge Boldt relied was USA-30,

Dr. Lane’s “Anthropological Report on the Identity, Treaty Status and Fisheries of the Lummi

Tribe of Indians.” He cited this report extensively in Final Decision No. 1, indicating the degree

to which he based his findings and conclusions on the expert opinions Dr. Lane presented in the

report. See United States v. Washington, 19 F.Supp.3d 1184, 1195 (W.D. Wash. 1995).

The first section of the report cited by Judge Boldt is pages 1-5 (EH026-030). It discusses

Lummi’s successorship and home territory and is the basis for Judge Boldt’s finding in FF 44 that


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Lummi lived “in the area of Bellingham Bay and near the mouth of the [Nooksack River].”9

Notably, all of the areas described by Dr. Lane as Lummi’s homeland are to the north and west of

Region 2E, indicating that the Lummi people did not live near Region 2E at treaty time and likely

would not have fished there customarily. See, e.g., USA-20 at 16-17, 19-20 (EH019-020, EH021-

022) (discussing fishing in close proximity to permanent villages, local resident control of

fisheries, and the conditions under which permissive use rights were granted to outsiders).

Next, Judge Boldt cited portions of the report to support his findings regarding the primacy

of Lummi’s reefnet fishery and the location of Lummi reef net sites on “Orcas Island, San Juan

Island, Lummi Island and Fidalgo Island, and near Point Roberts and Sandy Point.” FF 45 (citing

USA-30 at 6-25 and especially pages 11, 17, 23 (EH036, EH043, EH050)). Dr. Lane devoted much

of her analysis to Lummi’s reefnet fishery, and a similar emphasis throughout Final Decision No.

1 indicates the degree to which Dr. Lane’s conclusions regarding the Lummi reefnet fishery were

critical to Judge Boldt’s ultimate findings and conclusions regarding Lummi’s U&A.

In her reports and testimony, and particularly in USA-30, Dr. Lane emphasized the

overarching importance of Lummi’s reefnet fishery and the degree to which it was unique among

the tribes of western Washington. Among other things, she opined and Judge Boldt found that: (1)

Lummi owned particularly lucrative fisheries due in large part to its reefnet fishery targeting Fraser

sockeye (see, e.g., FF 45; USA-30 at 8, 10-11 (EH033, EH035-036)); (2) reefnetting was the single

most important economic activity of the Lummi (see, e.g., FF 45; USA-30 at 2, 8, 11 (EH027,

9 According to Dr. Lane, Lummi’s home territory included Bellingham Bay, Lummi Bay, Lummi Island, parts of the San Juan Islands (including Orcas, Lopez, Shaw, San Juan, Blakely, Guemes, Cypress, and other islands between Lopez and the mainland), and portions of Samish Bay, Padilla Bay, and Fidalgo Bay. USA-30 at 1-2 (EH026-027).


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EH033, EH035)); and (3) reefnetting was a highly specialized fishery that required, among other

things, intimate local knowledge of fixed fishing locations in open marine waters with particular

geographic and environmental characteristics (see, e.g., FF 45 and 52; USA-30 at 12, 15-18 and

associated diagrams (EH037, EH040-045)).

In general, Dr. Lane concluded that Lummi’s “reefnetting technique was employed from

the Straits of Juan de Fuca to Point Roberts apparently at all feasible locations.” USA-30 at 12

(EH037) (emphasis added). This area plainly does not include the secluded waters of Region 2E,

which are located well to the south and east of the area described by Dr. Lane.

In addition to her opinion regarding the general location of Lummi’s reefnet fishery, Dr.

Lane identified at least 15 Lummi reefnet locations in USA-30.10 She also prepared a sketch

depicting their location. See USA-30, sketch inserted between pp. 24 and 25 (EH052). The

southernmost sites depicted on the sketch are off the southern shore of Lopez Island and the

easternmost site depicted on the sketch is off Langley Point on the western shore of Fidalgo Island,

which are respectively to the north and west of Region 2E. None are located in Region 2E. As this

Court has previously noted:

The map shows reefnet sites at various points from Point Roberts south to the southern shore of Lopez Island. All appear to be associated with promontories and headlands, and none are located south of Lopez Island, where the case area [at issue in Subproceeding 11-2] begins. The singular importance of reefnetting to the Lummi was acknowledged by Judge Boldt in FF 45, and the complete absence of any indicated sites from the case area is significant.

10 These are described in USA-30 on the pages indicated in parentheses and include Stuart Island (14-15), Iceberg Point on Lopez Island (9, 24), Fisherman’s Bay on Lopez Island (9), unnamed sites off the southern shore of Lopez Island (24), unnamed sites off of Shaw Island (24), unnamed sites off Orcas Island (24), unnamed sites off Waldron Island (24), Point Roberts (14-15, 22-23, 26), Boundary Bay (10), Semiahmoo (19), Birch Point on Birch Bay (24, 26), Cherry Point (24, 26), Village Point on Lummi Island (9, 21, 23, 26), other unnamed sites off the west coast of Lummi Island (13, 26), and Langley Point on Fidalgo Island (23-24, 26) (collectively, EH034-035, EH038-040, EH046, EH048-051, EH054).


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United States v. Washington, 20 F.Supp.3d 899, 977 (W.D. Wash. 2008). The same is true here:

the absence of any evidence of Lummi reefnetting in Region 2E demonstrates that Lummi did not

engage in its single most important and most lucrative fishing activity in Region 2E and strongly

suggests that Judge Boldt did not intend to include it within Lummi’s U&A.

The next section of the report cited by Judge Boldt is pages 23-26 and is entitled “Usual

and Accustomed Fishing Areas.” Dr. Lane begins this section by explaining that “[w]hile it is not

possible to pinpoint every fishing site, it is feasible to indicate the general area of [Lummi’s]

fishing operations and within the general area to designate certain sites as important or principal

fishing locations.” USA-30 at 23 (EH050) (emphasis added). After discussing the location of

Lummi’s principal fisheries, she concluded that “[t]he traditional fishing areas discussed thus far

extended from what is now the Canadian border south to Anacortes.” Id. at 24 (EH051) (emphasis

added). The sketch referenced above provides a striking visual confirmation of this description,

for it is this area, and not areas to the south or east such as Region 2E, that is dotted with symbols

depicting Lummi’s fishing activities. See id. between pp. 24 and 25 (EH052).

This Court has previously addressed the significance of Dr. Lane’s statements describing

Lummi’s U&A as extending south to Anacortes. See United States v. Washington, 20 F.Supp.3d

at 979. As the Court noted, the fact that Judge Boldt cited to this section of Dr. Lane’s report and

used the specific place names identified by Dr. Lane in FF 45 indicates his reliance on this portion

of her expert opinion. Where, as here, “the ‘traditional fishing areas’ of the Lummi were designated

[by Dr. Lane] as extending only as far south as Anacortes, well above [the disputed waters],” the


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inference to be drawn is that Judge Boldt did not intend to include them. Id.11

In addition to indicating the general area of Lummi’s fishing operations in her conclusions

regarding Lummi’s U&A, Dr. Lane described with particularity the locations of Lummi’s principal

fisheries. As discussed above, the reefnet fishery was located at fixed locations in open marine

waters from the Strait of Juan de Fuca to Point Roberts. Lummi’s troll fisheries were located in

Haro and Rosario Straits and the San Juan Islands. USA-30 at 22-24. Lummi’s freshwater fisheries

were located in the Nooksack River, id. at 22; the Lummi River, id. at 21, 23; the Samish River,

id. at 3; the Fraser River, id. at 3; Whatcom Creek, id. at 22; the Red River, id. at 23; and the “river

drainage systems emptying into bays from Boundary Bay south to Fidalgo Bay,” id. at 26

(collectively, EH028, EH048-054). Once again, all of these locations are to the north and the west

of Region 2E. Dr. Lane does not describe a single fishing location in the waters of Region 2E,

indicating that in her expert opinion, Lummi did not fish there on a usual and accustomed basis.

FF 45 and 46 specifically name many of the traditional Lummi fishing areas identified by

Dr. Lane in this section of her report, and clearly refer to others although not identified by name

(for example, the Lummi River and the Samish River are not specifically named but are “river

drainage systems” that empty to “bays from Boundary Bay south to Fidalgo Bay,” FF 46). In fact,

Judge Boldt’s findings almost perfectly mirror Dr. Lane’s expert opinion regarding the locations

of Lummi’s traditional fisheries. This reflects the degree to which he relied on Dr. Lane’s expert

11 As noted above, n.7, this order was reversed by the Ninth Circuit. This was not because the Ninth Circuit disagreed with this Court’s reasoning as to the inference to be drawn from Dr. Lane’s statement describing Lummi’s U&A as extending south to Anacortes in the absence of evidence of fishing beyond that, but because the Court found that there was evidence of fishing in the disputed waters. Here, where there is no evidence of Lummi fishing in Region 2E or of Lummi travel to or through Region 2E for purposes of fishing, this Court’s reasoning regarding the inference to be drawn from this statement remains sound.


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opinion and suggests that he not only included the areas that she identified as Lummi’s U&A

within his findings, but also excluded the areas that she did not identify as Lummi’s U&A.

Other parts of Dr. Lane’s report are not specifically cited by Judge Boldt but are relevant

to the current dispute. Dr. Lane noted several times that Lummi had “two basic characteristics

which sharply differentiated them from their neighbors to the south and the east and thus from all

other Indians under the Treaty of Point Elliott.” USA-30 at 2 (EH027) (emphasis added). The

first was linguistic. The Lummi spoke Straits Salish rather than the “Puget Sound language

[Lushootseed]” spoken by the tribes to the south and east, including the Region 2E tribes, making

conversations between Lummi and the other Point Elliott treaty tribes “mutually unintelligible.”

Id. The second related to fishing technologies. As discussed above, Lummi extensively used

specialized reefnet fisheries at fixed locations in marine waters which “contrasted sharply with

their neighbors to the south and east who relied mainly on weirs and traps….” Id. (emphasis

added); see also id. at 8, 10-12, 26 (EH033, EH035-037, EH054). The fact that Dr. Lane “sharply

differentiated” Lummi from their neighbors to the south and east, including the Region 2E Tribes,

suggests that she saw them as linguistically, culturally, technologically and geographically distinct

and did not view Lummi as one of the tribes customarily engaged in fishing in Region 2E and

other areas to the south and east of Lummi’s traditional fishing areas.

Other Evidence Cited by Boldt

In addition to Dr. Lane’s reports, Judge Boldt cited certain other evidence in the record to

support his factual findings regarding the Lummi. We will not address it in detail because it is

largely duplicative of the evidence presented in Dr. Lane’s reports and discussed above, and in


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some cases forms part of Dr. Lane’s source material.12 But several points are worth noting.

First, and most importantly, none of the other evidence cited by Judge Boldt identifies

Lummi reefnet locations or other Lummi fishing locations in Region 2E, and none of it references

Lummi travel to or through Region 2E for any purpose, let alone for the purpose of fishing. As a

result, none of it supports a conclusion that Lummi’s U&A includes Region 2E.

Second, some of the most evocative evidence in the record regarding Lummi’s pre-treaty

fisheries are eight affidavits sworn by Lummi tribal members in a separate case, United States v.

Alaska Packing Ass’n, brought by the United States in the late 1800s to address non-Indian

interference with Lummi’s traditional fisheries.13 In them, Lummi members who were alive at or

around the time of the Treaty describe the importance of their fisheries, the promises the tribes

received at the Treaty grounds, and the overarching importance of reefnetting to the Lummi way

of life. For example, Henry Kwina testified that he was about 15 at the time of the Treaty and

present at the Treaty grounds. Old Polen testified that he was about 40 at the time of the Treaty.

Both testified regarding the long history and importance of Lummi’s reefnet sites at Point Roberts

near the Canadian border and Village Point off Lummi Island, and both described significant post-

Treaty non-Indian interference with their reefnet fisheries. See Affidavit of Henry Kwina, PL-94b

12 For example, Judge Boldt cited Exhibits USA-60, USA-61, USA-62, USA-63, and USA-64 to support FF 45 and 46. All of these are historic maps or sketches of areas in the San Juan Islands that Dr. Lane relied upon to reach some of her conclusions regarding Lummi’s reefnet fisheries. Similarly, Judge Boldt cited the Transcript, pp. 1665, 1699-1701 to support FF 45 and 46, which is a portion of Dr. Lane’s testimony regarding Lummi customary fishing locations, including the mouth of the Nooksack River in Bellingham Bay and Lummi reefnet locations in the San Juan Islands. Two other exhibits cited by Judge Boldt to support FF 45 and 46, G-21 and G-26, are reports prepared by the State’s primary witness, Dr. Carroll Riley, regarding the Lummi. In the pages cited by Judge Boldt, Dr. Riley discussed Lummi’s yearly economic cycle and listed a number of customary Lummi fishing sites, none of which are in Region 2E. 13 These are Exhibits PL-94b, c, d, e, t, u, v, and x.


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(EH058-060); Affidavit of Old Polen, PL-94c (EH061-068). Their affidavits and the others sworn

by Lummi tribal members were cited by Judge Boldt to support FF 46 and were relied upon by Dr.

Lane and referenced several times in her trial testimony. See, e.g., Transcript at 2054-55, 2065

(Sept. 7, 1973) (EH070-071, EH072). Among other things, they establish that Lummi’s fisheries

were concentrated in and around Bellingham Bay, the Nooksack River, and other areas well to the

north and west of Region 2E. None of them mention fishing locations in or travel to or through

Region 2E.

Third, Judge Boldt cited several admitted facts from the Final Pretrial Order, Main Case

Dkt. No. 759 (Aug. 24, 1973), which Lummi signed. The first, §3-39, addressed Lummi’s home

territory in and around Bellingham Bay and the Nooksack River (EH074). The second, §3-40,

addressed Lummi’s unique characteristics at treaty time, which were discussed above (EH074).

The third, §3-42, addressed Lummi trade and Lummi gillnet, harpoon, basket trap, and troll

fisheries at the mouth of the Nooksack River, in Whatcom Creek, and in the San Juan Islands

(EH075). Notably, the Final Pretrial Order does not include any reference to Lummi fishing in or

traveling to or through Region 2E for purposes of fishing.

In sum, all of the evidence cited by Judge Boldt supports his general findings and

conclusions regarding the primacy of Lummi’s reefnet fisheries and the degree to which Lummi

pre-treaty activities were centered in and around Bellingham Bay, the Nooksack River, and other

areas to the north and west of Region 2E. While the details of the evidence to support those

conclusions are interesting, what largely matters for our purposes is not what is included in the

evidence cited by Judge Boldt, but what is absent from it. None of the evidence cited by Judge


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Boldt identified any Lummi reefnet locations in Region 2E, identified any other Lummi fishing

locations in Region 2E, referenced any geographic feature or named body of water in Region 2E,

or indicated in any way that Lummi traveled to or through Region 2E for any purpose at all, let

alone for the purpose of fishing.

3. Judge Boldt’s General References to “Northern Puget Sound” and Lummi Travel Do Not Support Lummi U&A in Region 2E.

Because there is no evidence in the record that Lummi actually fished in Region 2E or

traveled to or through Region 2E for the purpose of fishing at treaty time, any conclusion that

Lummi’s U&A includes Region 2E would have to be based either on Judge Boldt’s general

reference to “the marine areas of Northern Puget Sound” or on general evidence of Lummi travel

“from the Fraser River south.” FF 46. However, each of these arguments is foreclosed by the law

of the case and the evidence in the record.

Several tribes, including Lummi, have argued that because Judge Boldt included broad

geographic descriptors in their respective U&A findings, their U&As must include all waters

within that area even if Judge Boldt did not specifically name them. However, the Ninth Circuit

has flatly rejected this argument: “Judge Boldt used specific geographic anchor points in

describing other tribes' U & As. From this it is reasonable to infer that when he intended to include

an area, it was specifically named in the U & A.” Upper Skagit, 590 F.3d at 1025; see also Lummi

I, 235 F.3d at 451-52. As a result, this Court and the Ninth Circuit have rejected tribal claims,

including Lummi claims, to U&A in waters that are arguably within broad geographic descriptors


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in their respective U&A findings but that were not specifically named by Judge Boldt.14

Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020, is particularly instructive

because it also involved a dispute among tribes regarding fishing rights in Region 2E. In affirming

this Court’s conclusion that Suquamish does not have U&A in Skagit Bay or Saratoga Passage,

the Ninth Circuit emphasized several points relevant here. First, although the disputed waters were

arguably within the phrase “the marine waters of Puget Sound from the northern tip of Vashon

Island to the Fraser River” in United States v. Washington, 459 F.Supp. at 1049 (FF 5), Judge

Boldt “meant something other than this … given 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 area.” Upper Skagit, 590 F.3d at 1023-24. The same must be true here,

because although Judge Boldt used a similar general phrase in describing Lummi’s U&A as “the

marine areas of Northern Puget Sound from the Fraser River south to the present environs of

Seattle,” there is similarly no evidence of Lummi fishing on the east side of Whidbey Island or

traveling through there on their way between the northern and southern areas referenced in FF 46.

Second, the Ninth Circuit pointed out that the geography of Region 2E is incompatible with

a theory that numerous tribes, including the Suquamish and the Lummi, were freely fishing in or

traveling to or through Region 2E at treaty time. “Geographically, Saratoga Passage and Skagit

Bay are nearly enclosed or inland waters to the east of Whidbey Island…. The northern exits

14 See, e.g., Lummi I, 235 F.3d 443 (holding that Lummi’s U&A does not include the Strait of Juan de Fuca or Hood Canal, although arguably within the “marine areas of Northern Puget Sound” referenced in FF 46); Muckleshoot II, 234 F.3d 1099 (holding that Lummi’s U&A does not include waters south of Edmonds, although arguably within the “marine areas of Northern Puget Sound” referenced in FF 46); Muckleshoot III, 235 F.3d 429 (holding that Muckleshoot’s U&A does not include any marine waters beyond Elliott Bay, although arguably within “the saltwater of Puget Sound” referenced in Final Decision No.1, 384 F.Supp. at 367 (FF 76)).


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through Deception Pass and Swinomish Slough are narrow and restricted; both areas were

controlled by the Swinomish at treaty times.” Id. at 1024 n.6. This description of the geography

of Region 2E is confirmed by a quick glance at a map of Region 2E:


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This geography strongly suggests that the Lummi, like the Suquamish, were not customarily,

regularly, and frequently fishing in or traveling to or through Region 2E or its northern access

points at treaty time on their way between the Fraser River and their more southern fisheries on

the west side of Whidbey Island.

Third, the Ninth Circuit largely adopted the reasoning of this Court regarding the role of

treaty-time travel in U&A interpretations. See Upper Skagit, 590 F.3d at 1024-25. In the

proceedings below, this Court had concluded that while Dr. Lane found that the Suquamish and

other tribes traveled widely by canoe, this did not indicate that Judge Boldt intended to include

Skagit Bay or Saratoga Passage in Suquamish U&A. Dr. Lane did not mention waters to the east

of Whidbey Island in her testimony and report regarding Suquamish’s travel and fishing and she

placed the Suquamish travel route on the west side of Whidbey Island. United States v.

Washington, 20 F.Supp.3d 828, 839 (W.D. Wash. 2007). Accordingly,

[S]uch travel was not unique to the Suquamish, and no conclusion with respect to the subproceeding area can be drawn from the mere statement that they traveled widely. Dr. Lane's actual testimony … addressed only travel from the Suquamish territory up across the Strait of Juan de Fuca and through Haro and Rosario Straits, and the San Juan Islands. It would be pure speculation to conclude that those travels must also have included the east side of Whidbey Island, as there is absolutely no evidence in the record that they did so.

Id. (emphasis added).

This reasoning is even more applicable here, where extensive litigation in Subproceedings

89-2 and 11-2 has confirmed that the Lummi travel route between the two most distant places

referenced in FF 45 and 46 (namely, the Fraser River and the environs of Seattle) was to the west

of Whidbey Island. In her Lummi report and elsewhere (including the Suquamish report


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referenced above), Dr. Lane explained that “[t]he Straits and Sound were traditional highways

used in common by all Indians of the region.” USA-30 at 25 (EH053). This statement is the basis

for Judge Boldt’s finding that Lummi utilized the marine areas of Northern Puget Sound from the

Fraser River south to the environs of Seattle. See Final Decision No. 1, 384 F.Supp. at 360 (FF 46)

(citing USA-30 at 23-26). As this Court is well aware, the location and use of this marine highway

has been one of the central issues in litigation between Lummi and the Point No Point tribes for

over thirty years. While that litigation is not yet fully resolved, the Ninth Circuit has twice held

that Lummi has U&A in the waters west of Whidbey Island because (1) Lummi’s treaty time travel

path between its homeland and fisheries in the northwest part of the case area and its seasonal

fisheries in areas as far south as Edmonds was on the west side of Whidbey Island, and (2) Lummi

not only traveled that path, but customarily fished along the way. See Lummi III, 876 F.3d. at

1009-1010; Lummi II, 763 F.3d at 1187.

There is nothing in the record before Judge Boldt at the time Final Decision No. 1 was

issued or anything since to indicate that the secluded waters east of Whidbey Island were part of

any traditional marine highway open to all tribes or to Lummi in particular. To the contrary, all

of the cases that have considered the marine highways referenced by Dr. Lane have concluded that

they lie to the west of Whidbey Island.15 Moreover, the Ninth Circuit has suggested that there was

not a traditional marine highway on the east side of Whidbey Island, given the geographically

secluded nature of the Region 2E and the fact that access points from the north were controlled by

15 See, e.g., Upper Skagit Tribe v. Suquamish Indian Tribe, 871 F.3d 844, 1849-50 (9th Cir. 2017) (Suquamish travel route was west, not east, of Whidbey Island); Tulalip Tribes v. Suquamish Indian Tribe, 794 F.3d 1129, 1135 (9th Cir. 2015) (noting that Suquamish’s travel route “would have passed through the waters west of Whidbey Island”); Lummi III, 876 F.3d at 1009; Upper Skagit, 590 F.3d at 1025; Lummi II, 763 F.3d at 1187.


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Swinomish. Upper Skagit, 590 F.3d at 1024 n.6.

We note that Lummi prevailed in Lummi III by claiming and emphasizing that the waters

west of Whidbey Island were one of the deepwater marine highways described by Dr. Lane and

Lummi’s direct marine route between its fisheries in the north and the south. Brief of Respondent-

Appellant Lummi Nation, 9th Cir. No. 15-35661 Dkt. #21 at 41-55 (Dec. 23, 2015) (EH077-055).

As part of this argument Lummi drew a distinction between the Region 2E waters east of Whidbey

and the waters west of Whidbey. Id. at 52-55 (EH088-091). Lummi invoked both Upper Skagit,

590 F.3d 1020, and Tulalip Tribes v. Suquamish Indian Tribe, 794 F.3d 1129 (9th Cir. 2015), to

argue that its travel route was on the west side of Whidbey Island, and not on the east side. After

discussing these cases, Lummi wrote:

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 Island. … A similar conclusion follows here.

Id. at 55 (EH091) (emphasis added). Thus Lummi argued that its travel U&A was on the west side

of Whidbey Island and not on the east side, and, based upon that argument, secured a reversal of

this Court’s decision in Subproceeding 11-2. If Lummi were to switch positions now and claim

that its travel route was really on the east side of Whidbey Island, it would run afoul of the judicial

estoppel doctrine, which prevents parties from flip-flopping their positions in order to gain

strategic advantages in litigation. See United States v. Washington, 20 F.Supp.3d 986, 1042-1044

(discussing doctrine but exercising discretion not to apply it given the specific context of the case).

VI. CONCLUSION

Evidence of customary, regular, and frequent fishing activity in a particular area is

necessary in order to establish U&As in that area. Judge Boldt carefully reviewed the extensive


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evidence presented to him regarding Lummi’s treaty-time fishing locations and specifically

determined Lummi’s U&A in 1974. He did not identify any Lummi reefnet locations in Region

2E, he did not identify any other Lummi fishing location in Region 2E, he did not name any

geographic feature or body of water in Region 2E, and he did not reference Lummi travel to or

through Region 2E for the purpose of fishing. As demonstrated above, there is an utter lack of

evidence in the record to support Lummi U&A in Region 2E and, as a result, Judge Boldt could

not have intended to include Region 2E in Lummi’s U&A.

As this Court has previously recognized, if Lummi were to succeed in its quest to establish

treaty fisheries in Region 2E at this late date, it would substantially upset successful management

regimes and cause significant and irreparable economic harm and cultural and spiritual harm to

the established Region 2E Tribes and their members. See TRO at 6-9 and declarations cited therein

(EH006-009). To prevent such harm, and to avoid further emergency motions practice if the issues

presented in this subproceeding are not resolved, Swinomish’s motion for summary judgment

should be granted and the Court should enter a permanent injunction enjoining Lummi or its fishers

from fishing or attempting to fish for any species in Region 2E.

Respectfully submitted,

s/ Emily R. Haley Emily R. Haley, WSBA No. 38284 James M. Jannetta, WSBA No. 36525 Counsel for Swinomish Indian Tribal Community Office of Tribal Attorney 11404 Moorage Way La Conner, WA 98257 Tel: 360.466.3163 Fax: 360.466.5309 Email: [email protected]


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CERTIFICATE OF SERVICE

I hereby certify that on May 29, 2020, I electronically filed this MOTION FOR SUMMARY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF with the Clerk of the Court using the CM/ECF system, which will send notice of the filing to all parties registered in the CM/ECF system for this matter.

s/ Emily R. Haley Emily R. Haley

Swinomish Indian Tribal Community 11404 Moorage Way LaConner, WA 98257


the honorable ricardo s. martinez · the honorable ricardo s. martinez united states district court...

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