No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. Upper Skagit Indian Tribe, Plaintiff Appellee

Transcription

1 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 1 of 31 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Upper Skagit Indian Tribe, Plaintiff Appellee v. Suquamish Indian Tribe, Defendant Appellant On Appeal from the United States District Court Western District of Washington at Seattle The Honorable Ricardo S. Martinez (District Court No , Phase I) (Subproceeding No. 14-1) RESPONSE BRIEF OF APPELLEE UPPER SKAGIT INDIAN TRIBE Harold Chesnin, WSBA No. 398 David Hawkins, WSBA No Office of the Tribal Attorney Upper Skagit Indian Tribe Community Plaza Way Sedro Woolley, WA Phone: /Fax: haroldchesnin@aol.com dhawkins@upperskagit.com Andrew H. Salter, WSBA No. 119 Teton Law Group LLC 180 North Center Street #11 Jackson, WY Phone: /Fax: asalter@tetonlaw.com Attorneys for Appellee Upper Skagit Indian Tribe

2 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 2 of 31 CORPORATE DISCLOSURE STATEMENT (Circuit Rule 26.1) Appellee Upper Skagit Indian Tribe is a federally recognized Indian tribe. It has issued no shares of stock to the public and has no parent company, subsidiary or affiliate that has done so. i

3 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 3 of 31 TABLE OF CONTENTS I. STATEMENT OF JURISDICTION 1 II. STATEMENT OF ISSUES PRESENTED 1 III. STATEMENT OF CASE AND PROCEEDINGS BELOW 2 A. Upper Skagit s Request for Determination 4 B. Cross Motions for Summary Judgment 5 C. The District Court Grants Upper Skagit s Motion for Summary Judgment And Denies Suquamish s Cross-Motion 6 IV. STATEMENT OF FACTS 6 A. Upper Skagit s U&A 6 B. Suquamish s U&A 7 V. STANDARD OF REVIEW 9 VI. SUMMARY OF ARGUMENT 9 VII. ARGUMENT 10 A. The District Court Was Correct in Granting Upper Skagit s Motion for Summary Judgment The Ninth Circuit Clearly Established the Procedure to Use in Ruling On a Request for Determination Seeking Clarification of the Extent of a Tribe s U&A The District Court Properly Examined the Evidence Before Judge Boldt to Make This Determination Suquamish Wishes This Court to Draw and Impermissible ii

4 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 4 of 31 Inference In Its Favor Based On The Lack of Tribal Objection Suquamish Wishes this Court to Review Irrelevant Regulations Issued After the Ruling by Judge Boldt The Suquamish Discussion of the Relevance of Hale Passage to This Inquiry Is Not Supported By The Facts And, At Best, Asks This Court to Make An Inference Instead Of Relying On Actual Facts The District Court Was Correct. Issue Preclusion Does Not Apply Here, But If It Did, It Was Suquamish Which Lost The Subproceeding 05-3 Case and The Rulings Would, Of Necessity, Destroy the Suquamish Claim Here 22 VIII. CONCLUSION 23 iii

5 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 5 of 31 TABLE OF AUTHORITIES Muckleshoot Indian Tribe, et al. v. Lummi Indian Tribe, 141 F3d 1355 (9 th Cir, 1998) 9, 11, 13 Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F3d 1099 (9 th Cir. 2000)...11 Puyallup Indian Tribe, et. al. v. Muckleshoot Indian Tribe 235 F.3d 429 (9 th Cir. 2000)..11, 15 U.S. v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974).3, 18 U.S. v. Washington, 459 F. Supp (W.D. Wash. 1978).3, 7, 8 Upper Skagit Indian Tribe v. Suquamish, 590 F.3d 1020 (9 th Cir. 2010) 1, 2, 5, 8, 9, 10, 11, 12, 20, 22, 23 Memorandum Opinion and Order in U.S. v. Washington, Subproceeding 89-3 (December 20, 1994). 3, 6 Washington v. Washington State Commercial Passenger Fishing Vessel Association, 433 U.S. 658 (1979)..2 iv

6 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 6 of 31 I. STATEMENT OF JURISDICTION Appellee Upper Skagit Indian Tribe ( Upper Skagit ) agrees with the Statement of Jurisdiction set forth in the Opening Brief of Appellant Suquamish Tribe, except that the Request for Determination challenged the claim of the Suquamish Tribe to usual and accustomed fishing rights in areas the Court had previously declared to be within the usual and accustomed fishing grounds and stations of Upper Skagit in Chuckanut Bay, Samish Bay and portions of Padilla Bay. Dkt 4 / SER 1 7. II. STATEMENT OF ISSUES PRESENTED A. Whether the absence of actual evidence that the Suquamish Tribe fished in the Subproceeding areas at treaty times and the judicial admission of the Suquamish Tribe regarding its lack of fishing or travel through to Chuckanut Bay, Samish Bay and portions of Padilla Bay properly led the District Court to conclude that Upper Skagit met its burden to demonstrate that Judge Boldt did not intend to include those areas in the Suquamish Tribe s usual and accustomed fishing grounds and stations. B. Whether the Suquamish Tribe can collaterally attack the rulings of this Court in Upper Skagit Indian Tribe v. Suquamish, 590 F. 3d 1020, 1025 (9 th Cir. 2010) 1

7 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 7 of 31 (the Subproceeding 05-3 Case ), by attempting to introduce both irrelevant documents and impermissible inferences for consideration by this Court. 1 III. STATEMENT OF CASE AND PROCEEDINGS BELOW This is a subsequent, but a companion case to this Court s ruling in the Subproceeding 05-3 Case. This is an appeal of a decision issued in Subproceeding 14-1 of U.S. v. Washington, Case No U.S. v. Washington was originally filed in 1970 by the United States on its own behalf and as trustee for seven Indian Tribes seeking an injunction against the State of Washington ( State ) requiring the State to protect the Indian share of the anadromous fish runs. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, (1979). The Upper Skagit Indian Tribe ( Upper Skagit ) was an original plaintiff in U.S. v. Washington and the Suquamish Indian Tribe ( Suquamish ) subsequently intervened as a plaintiff. Over the years, the District Court has adjudicated in U.S. v. Washington the geographic scope of the tribes usual and accustomed grounds and stations ( U&A ). A tribe s U&A is defined as: [E]very fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the 1 As the Ninth Circuit stated the burden, the inquiry was to focus on that there was no [actual] evidence before Judge Boldt Subproceeding 05-3 Case at p. 1023, which determination was supported by the Ninth Circuit s ruling that in the Suquamish 05-3 Case [T]here is no evidence (emphasis added). Id. at p

8 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 8 of 31 then usual habitat of the tribe, and whether or not other tribes then also fished in the same waters... U.S. v. Washington, 384 F. Supp. 312, 332 (W.D. Wash. 1974). 2 The District Court also retained continuing jurisdiction to resolve disputes concerning the location of any of a tribe s usual and accustomed fishing grounds not specifically determined in the collection of Court orders issued in that case. Id. at 419. In Subproceeding 14-1, United States District Court Judge Ricardo S. Martinez was asked by Upper Skagit to clarify whether the U&A of Suquamish included Chuckanut Bay, Samish Bay and portions of Padilla Bay (the Subproceeding Areas ), which are located north and east of Whidbey Island and within the adjudicated U&A of Upper Skagit. The U&A for each of these two Tribes has been determined by the District Court in the original U.S. v. Washington proceedings and in subsequent subproceedings. U.S. v. Washington, 384 F. Supp. at 379; U.S. v. Washington, 459 F. Supp. 1020, 1049 (W.D. Wash. 1978); Memorandum Opinion and Order in U.S. v. Washington Subproceeding 89-3, December 20, After filing cross motions for summary judgment, Judge Martinez granted Upper Skagit s motion for summary judgment and denied Suquamish s motion for summary judgment. Dkt. 62 / ER Judge Martinez correctly concluded, 2 Fishing had to customarily occur in an area to qualify as a U&A; occasional and incidental fishing in an area was not sufficient. 384 F. Supp. at

9 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 9 of 31 based upon an exhaustive review of the actual evidence before the Court at the time in 1975, that Judge Boldt did not intend to include the Subproceeding Areas in Suquamish s U&A. That decision, the subject of this appeal, should be affirmed by this Court. A. Upper Skagit s Request For Determination. Upper Skagit initiated Subproceeding 14-1 by filing a Request for Determination, asking the District Court to clarify Suquamish s U&A. Dkt 4 / SER 1-7. Specifically, Upper Skagit sought a determination that Suquamish s U&A did not include the Subproceeding Areas. Upper Skagit s Request for Determination was filed in response to improper efforts by Suquamish to attempt to expand its fishing and shellfishing into waters Upper Skagit relies on as part of its primary salt water fishing and shellfishing U&A. This attempted expansion commenced almost 40 years after Suquamish s U&A was originally established in 1975, violating the District Court s original determination of Suquamish s U&A as well as ignoring the import of this Court s determination in the Subproceeding 05-3 Case, which prohibited Suquamish fishing in Saratoga Passage and Skagit Bay on the east side of Whidbey Island. B. Cross-Motions For Summary Judgment. After an agreed upon exchange of documents upon which each side intended to rely relating to Judge Boldt s U&A decision for Suquamish in 1975, Upper 4

10 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 10 of 31 Skagit and Suquamish each filed a Cross-Motion for Summary Judgment. Upper Skagit contended that Judge Boldt did not intend the Subproceeding Areas to be included in Suquamish s U&A and that the scope of Suquamish s U&A must be clarified by the District Court under the continuing jurisdiction of U.S. v. Washington. Upper Skagit argued: (1) there was no actual evidence in the record before Judge Boldt in 1975 from which he could have concluded that Suquamish s U&A included the Subproceeding Areas 3 ; (2) the Suquamish Tribe s judicial admission at footnote 3 in its briefing in connection with the summary judgment motions supported the position that Squamish s U&A did not extend to the Subproceeding Areas (Dkt 37 / SER -11); and (3) had Judge Boldt intended to include the Subproceeding Areas within Suquamish s U&A, he would have stated so directly and unequivocally. Upper Skagit further asserted that the determination in the Subproceeding 05-3 Case established the burden that Upper Skagit was required to carry in this subproceeding and defined the relevant evidence that could be presented by the parties and considered by the Court here. 3 The determination is to be based on the record before Judge Boldt as of April 18, 1975, 590 F.3d 1020 at

11 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 11 of 31 C. The District Court Grants Upper Skagit s Motion For Summary Judgment and Denies Suquamish s Cross-Motion. The District Court, after reviewing the record before Judge Boldt and the evidence submitted by the parties, denied the Suquamish Cross-Motion and granted the Upper Skagit Motion, concluding that the Suquamish s U&A did not include the Subproceeding Areas. (Dkt. 62 / ER 5-23). The District Court found that there was no evidence to support a Suquamish claim to a U&A in the Subproceeding Areas. there must still be some evidence in the record before Judge Boldt indicating his intent to include (the Subproceeding Areas) within a tribe s U&A. The evidence in this case points only to the opposite conclusion.... (Dkt. 62 / ER 20, Ln 9-11). The Ninth Circuit has indicated that the fact that Judge Boldt neglected to mention Skagit Bay and Saratoga Passage in delineating the Suquamish U&A supports (the) conclusion that he did not intend them to be included. Id. This analysis applies with equal force here. (Dkt. 62 / ER 20, Ln ). IV. STATEMENT OF FACTS A. Upper Skagit s U&A. Upper Skagit s salt water U&A was established in Subproceeding , some 20 years after Suquamish s U&A was adjudicated. Prior to the Subproceeding 05-3 Case, Upper Skagit did not have cause to seek a clarification of Suquamish s U&A. For more than 10 years, Upper Skagit, other tribes, and the 4 Memorandum Opinion and Order in U.S. v. Washington, Subproceeding 89-3, December 20,

12 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 12 of 31 State have collectively reached fisheries management determinations in the Subproceeding Areas without Suquamish. Upper Skagit s salt water U&A, proven through a far more rigorous process than used in 1975, is specific as to location, narrow as to scope, and its infringement by any tribe causes significant hardship to Upper Skagit and its fishermen because of their limited geographic access to fish in the salt water and shellfish resources. B. Suquamish s U&A. In 1975, the District Court issued an order as a result of a dispute over treaty fishing for herring. U.S. v. Washington, 459 F. Supp. at The District Court, in order to permit a tribal herring fishery, held that Suquamish had made a prima facie showing that its U&A fishing grounds 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. Id. at This Order was entered on April 18, (Dkt. 62 / ER 24-30). At the April 9, 1975, evidentiary hearing shortly before that Order was entered, Judge Boldt clarified on the record the de minimus standard he was using to determine Suquamish s U&A as a result of the impending opening of the herring fishery: The problems relating to the herring fishery were brought to the Court s attention very late in the game, as it were.... The press of innumerable other matters in this litigation has kept everyone working 7

13 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 13 of 31 overtime constantly; but we had all hoped that the herring fishery matter could be brought on with ample time to develop everything about it and get it settled once and for all in final form subject, of course, to appeal. That was not possible, as a result of which I have gone through great pains to expedite a prima facie determination for the benefit of the Fisheries Department even above the tribal questions. And it seems to me that all we need to concern ourselves with at this time or all that we have time to consider as this time is the matter of prima facie showing with respect to this matter. Dkt /ER 43, Ln Notwithstanding the timing of the herring fishery, as Judge Martinez noted at p. 3 of his order, the hearing over the next several days was intended to receive anthropological and biological evidence from which to determine the Suquamish U&A. (Dkt. 62 / ER 7, Ln 15-16). 5 On April 10, 1975, Judge Boldt confirmed on the record that the U&A he was designating for Suquamish included only areas one and two as designated by the state. Dkt / ER As shown on the map to which Judge Boldt referred, the Subproceeding Areas at issue here are in area three, not in areas one and two. (See the map in question Dkt / ER1117.) In 2007, this Court ruled in the Subproceeding 05-3 Case, that Suquamish did not have a U&A in the Upper Skagit U&A areas of Saratoga Passage and 5 This understanding is derived from Judge Boldt s Order of March 28, 1975 at paragraph 6 (Dkt. 16-3, ER ) 8

14 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 14 of 31 Skagit Bay. This Court confirmed the test to be followed in an adjudication of similar claims, such as in this case, ruling: 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 (9 th Cir. 1998) ( Muckleshoot I ), Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9 th Cir. 2000) ( Muckleshoot II ) and United States v. Muckleshoot Indian Tribe, 235 F.3d 426 (9 th Cir. 2000) ( Muckleshoot III ). First, it determined that Upper Skagit had the burden to offer evidence that FF 5 was ambiguous, or that Judge Boldt intended something other than its apparent meaning (i.e., all salt waters of Puget Sound). Second, if the evidence, including contemporaneous understanding of the extent of the marine waters of Puget Sound showed that Puget Sound as used in the Suquamish U&A included the Subproceeding Area, Upper Skagit has the burden to show that there was no evidence before Judge Boldt that the Suquamish fished [in the disputed area] or traveled there in route to the San Juans and the Fraser River area. 590 F.3d at 1023 V. STANDARD OF REVIEW The Appellate Court reviews a grant of summary judgment de novo. Muckleshoot Indian Tribe, et al. v. Lummi Indian Tribe, 141 F.3d 1355, 1357 (9 th Cir. 1998). VI. SUMMARY OF ARGUMENT This is a subsequent, but a companion case to this Court s ruling in the Subproceeding 05-3 Case. The District Court correctly granted summary judgment to Upper Skagit and denied the Suquamish Cross-Motion here, determining that Judge Boldt did not intend to include the Subproceeding Areas within Suquamish s U&A. This conclusion was reached after examining the record before Judge Boldt, the transcript of proceedings before Judge Boldt, and Judge Boldt s own 9

15 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 15 of 31 language in describing the U&As of Suquamish and of other tribes 6. The District Court below and this Court in its ruling in the Subproceeding 05-3 Case also made it abundantly clear that any and all information or claims subsequent to the date of Judge Boldt s decision were irrelevant and not to be considered as part of the record relied upon to determine the meaning of Suquamish s U&A. VII. ARGUMENT A. The District Court Was Correct In Granting Upper Skagit s Motion For Summary Judgment. In addressing the parties motions for summary judgment, the District Court followed the dictates of the Subproceeding 05-3 Case that the burden in this subproceeding was on the requesting party Upper Skagit to prove that there was no evidence presented to Judge Boldt in 1975 to support the Suquamish U&A claim to treaty time fishing in the Subproceeding Areas. Upper Skagit met that burden and the District Court properly concluded that Judge Boldt did not intend to include Chuckanut, Samish, and the disputed portions of Padilla Bay within the U&A of the Suquamish Tribe. Dkt. 62 / ER As mandated by this Courts precedent set forth in the Muckleshoot trilogy and affirmed in Subproceeding 05-3 Case. 10

16 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 16 of The Ninth Circuit Clearly Established the Procedure To Use In Ruling Upon A Request For Determination Seeking Clarification Of The Extent Of A Tribe s U&A. In a series of prior decisions, this Court established and defined the procedure a District Court must follow in addressing requests for determination such as this. Upper Skagit v. Suquamish, 590 F.3d (9 th Cir. 2010), Muckleshoot Indian Tribe, et al. v. Lummi Indian Tribe, 141 F.3d 1355 (9 th Cir. 1998) ( Muckleshoot I ); Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9 th Cir. 2000) ( Muckleshoot II ); Puyallup Indian Tribe, et al. v. Muckleshoot Indian Tribe, 235 F.3d 429 (9 th Cir. 2000) ( Muckleshoot III ). (Muckleshoot I, Muckleshoot II and Muckleshoot III will collectively be referred to herein as the Muckleshoot Trilogy ). In those decisions, this Court directed the District Court to determine what Judge Boldt meant in precise geographic terms, by reviewing the record before Judge Boldt at the time his U&A determination was rendered. 7 Muckleshoot I, 141 F.3d at 1359 ( [T]he only relevant evidence is that which was considered by Judge Boldt when he made his finding ); Muckleshoot III, 235 F.3d at The District Court here did just that. As this Court will see from the Appellant s Brief and submissions, the Suquamish can identify no actual facts, much less the permitted evidence as 7 After the ruling of this Court in the Subproceeding 05-3 Case, there is no longer an issue as to ambiguity as that issue was adjudicated in that case. 11

17 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 17 of 31 defined in the Subproceeding 05-3 Case, that support the claim to include the Subproceeding Areas as part of the Suquamish U&A. Without actual evidence in the record, the Suquamish are left with attempting to build a case based exclusively on inference. However, while it is clear that Judge Boldt could have used inferences to make his determination, the District Court and this Court must rely only upon the actual evidence before Judge Boldt, and not inferences drawn from documents that do not constitute evidence upon which the District Court could rely. In this Paragraph 25(a)(1) case, the inferences which Suquamish desperately attempts to string together to attempt to achieve a result in its favor have previously and consistently been determined to be irrelevant and not permitted to support the Suquamish claim. See Upper Skagit v. Suquamish, 590 F.3d at 1023 and As was done in the Subproceeding 05-3 Case, the District Court here examined the actual evidence before Judge Boldt when he defined Suquamish s U&A to determine if Judge Boldt intended something other than the apparent meaning of Suquamish s U&A. The District Court placed the burden on the Upper Skagit to demonstrate that there was no actual evidence before Judge Boldt that Suquamish fished in the Subproceeding Areas at treaty times. Upper Skagit met that burden. The District Court exhaustively examined and rejected Suquamish s 12

18 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 18 of 31 proffer of evidence, in the nature of inferences and inferences derived from inferences, that the Suquamish U&A encompassed the Subproceeding Areas. 2. The District Court Reviewed the Evidence Before Judge Boldt to Make This Determination In its effort to examine the evidence before Judge Boldt in 1975, when Suquamish s U&A was adjudicated, the District Court extensively reviewed the reports and testimony of Dr. Barbara Lane. In support of its claim to U&A rights before the trial court in 1975, Suquamish submitted a report dated December 15, 1974, entitled Identity, Treaty Status and Fisheries of the Suquamish Tribe of the Port Madison Reservation authored by Dr. Barbara Lane. The report was admitted at trial as USA 73. Dkt / ER Dr. Lane, an anthropologist, was the expert witness whose anthropological report on historical tribal fishing grounds was the major item of evidence relied on by Judge Boldt. Muckleshoot I, 141 F.3d at When looking at Dr. Lane s evidence presented on behalf of Suquamish, unlike other portions of her report addressing Suquamish fishing in state designated areas one and two on the map discussed above (Dkt / ER1117), she presented no place names for Suquamish fishing in the Subproceeding Areas. This is a clear indication of a lack of Suquamish fishing in the Subproceeding Areas. Next, when discussing the areas in which Suquamish fished, Dr. Lane never designated Area 3, in which the Subproceeding Areas 13

19 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 19 of 31 reside, as a location of Suquamish fishing. Indeed, as the District Court repeatedly determined in its Order, there was no testimony or evidence regarding a Suquamish U&A in Areas 3. As Dr. Lane testified, the areas in which she found Suquamish fishing and, therefore, its U&A, were only Areas 1 and 2. Dkt /ER Within minutes of Dr. Lane s testimony specifically limiting Suquamish s U&A to areas 1 and 2 on the State s map, Suquamish counsel, Alan Stay, unambiguously represented to Judge Boldt no fishing will take place other than the usual and accustomed areas that have been described by Dr. Lane. Dkt / ER 792. Finally, Dr. Lane unequivocally ruled out Suquamish traveling to or fishing in Bellingham Bay 8. As Dr. Lane stated: In the normal way my understanding, my best understanding, is that at treaty times Lummi fishermen would not come and harvest herring from the spawning places in the inlets inside Suquamish territory, and you can refer to the Suquamish report to specific places where herring were taken. They had herring places closer to their own place, where they lived. In the same way Suquamish would not go all the way over into Bellingham Bay in order to get herring that were spawning right inside where the Lummi lived because they had their own places. Dkt / ER 816 (emphasis added). This statement by Dr. Lane is dispositive, because Suquamish in its Motion for Summary Judgment made a crucial judicial admission when it admitted at footnote 3 on page 4 that: 8 An observation of a Puget Sound map shows that areas 1 and 2 are west of Bellingham Bay and the Subproceeding Areas at issue here are east and southeast of Bellingham Bay. 14

20 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 20 of 31 A review of a map of the contested waters at issue makes clear that Chuckanut Bay can only be accessed overwater by crossing through Bellingham Bay. Similarly, the contested Suquamish U&A in Samish Bay and Padilla Bay are located directly south and adjacent to Bellingham Bay. (emphasis added). (Dkt 37 / SER -11). On the basis of that review, the District Court concluded that Dr. Lane s reports and testimony contained no references to Suquamish fishing or traveling in the Subproceeding Areas. 9 The District Court correctly limited its review of the record to that which was before Judge Boldt during the 1975 adjudication of Suquamish s U&A, as required by Muckleshoot III, 235 F.3d at ( The only relevant evidence is that which was considered by Judge Boldt when he made his finding. ). The District Court s review of that record and the evidence presented by Suquamish and its expert to Judge Boldt during the 1975 hearing confirmed that there was no evidence before Judge Boldt that Suquamish either fished in or traveled through the Subproceeding Areas. It is undisputed, upon a review of both Dr. Lane s written report and her testimony submitted during the course of the April, 1975 U&A hearing before Judge Boldt, that Dr. Lane found no evidence that Suquamish ever fished in the Subproceeding Areas. 9 While she did testify that the Suquamish traveled up to the Fraser River, her reference to the Strait of Juan de Fuca, Haro and Rosario Strait places their route on the west side of Whidbey Island, from the Port Madison area and up through the San Juan Islands, not wandering east toward Bellingham Bay. 15

21 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 21 of 31 The heart of the issue before the District Court was whether the record as of the date of the 1975 Order establishing the Suquamish U&A contained any documentary or testimonial evidence to support Suquamish s claim to U&A rights in the Subproceeding Areas. The District Court was correct in finding that no such evidence existed. Certainly Judge Boldt could not have intended to permit a Tribe to exercise a right to fish in areas where it had not fished prior to and at treaty times. In fact, Judge Boldt himself clearly ruled that Suquamish did not have U&A rights in the Subproceeding Areas. At the conclusion of the U&A portion of the hearing before him on April 10, 1975, Judge Boldt specifically determined that Suquamish had U&A rights in areas one and two as designated by the state. Dkt / ER 891. This confirmed Judge Boldt s direct understanding of the areas in which Suquamish had proven its U&A when, at the beginning of the April 10, 1975 hearing, he requested the Clerk to identify the areas in question and the Clerk identified areas 1 and 2 without change or correction by the Judge or counsel. Dkt / ER 4, Ln The Subproceeding Areas are in area three, not in areas one and two. Thus, this Court has more than just the foregoing evidence that Judge Boldt intended to exclude the Subproceeding Areas from Suquamish s U&A; it has Judge Boldt s specific findings on the issue. This is a direct, affirmative, and unambiguous confirmation that Judge Boldt did not intend 16

22 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 22 of 31 Suquamish s U&A to include the Subproceeding Areas. He said so himself. Nothing could be clearer. 3. Suquamish Wishes This Court to Draw an Impermissible Inference in its Favor Based on the Lack of Tribal Objection. This argument fails for several reasons. First, this Court in all its prior decisions has ruled that actual evidence and not inferences are required in this type of proceeding. Suquamish strains to string an inference upon an inference in an attempt to support its claim. Just because the herring fishery determination was hurried doesn t mean that actual facts and evidence were not required to support the inclusion of the Subproceeding Areas in the Suquamish U&A. Moreover, the language quoted to this Court by Suquamish occurred on April 9, That, of course was the same day that Dr. Lane s testimony unambiguously barred Suquamish from Bellingham Bay. Of even greater significance is that, even after the pronouncement about a prima facie case upon which Suquamish wishes to rely, Judge Boldt unequivocally limited his U&A finding to areas 1 and 2 on the map he was reviewing and not area 3 where the Subproceeding Areas reside. As if the timing and the Judge s own statements, which contradict the inferences the Suquamish wish this Court to apply, weren t sufficient, this argument ignores the reality that, in defining U&As of other tribes that included 17

23 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 23 of 31 portions of Puget Sound, Judge Boldt routinely provided specific geographical definitions as to their boundaries, and specifically identified bays, straits, and island areas that he intended to include. For example: The U&A for the Lummi Tribe was defined as the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay. Freshwater fisheries include the river drainage systems, especially the Nooksack, emptying in the bays from Boundary Bay south to Fidalgo Bay. U.S. v. Washington, 384 F. Supp. at 360. The U&A of the Puyallup Tribe was defined as the marine areas around Vashon Island and adjacent portions of Puget Sound, Commencement Bay, the Puyallup River, and the tributary rivers and creeks. Id. at 371. The U&A of the Nooksack Tribe was defined as the Nooksack River and its tributaries, Bellingham Bay, Chuckanut Bay, Birch Bay, Semiahmoo Bay, and Semiahmoo Spit and surrounding marine waters. U.S. v. Washington, 459 F. Supp. at The U&A of Swinomish was defined as the Skagit River and its tributaries, the Samish River and its tributaries, and the marine areas of Northern Puget Sound from the Fraser River south to and including Whidby, Camano, Fidalgo, Guemes, Samish, Cyprus, and the San Juan Islands, and including Bellingham Bay and Hale Passage adjacent to Lummi Island. Id. at The U&A of Tulalip Tribes was defined as [b]eginning at Admiralty Head on Whidbey Island and proceeding south, those waters described as Admiralty Bay and Admiralty Inlet, then southeasterly to include the remainder of Admiralty Inlet including Mutiny and Useless Bay, then northeasterly to include Possession Sound and Port Gardner Bay, then northwesterly to include the waters of Port Susan up to a line drawn true 18

24 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 24 of 31 west of Kyak Point and Holmes Harbor and Saratoga Passage up to a line drawn true west of Camano on Camano Island. Id. at Even a cursory review of the U&A descriptions of other Puget Sound tribes confirms that their U&A s were routinely defined and bounded by the inclusion of specifically identified geographic anchors. Specific areas of a tribe s U&A were defined by inclusion and not by either omission or inference, as Suquamish asserts. If Judge Boldt had intended to include the bays such as the Subproceeding Areas at issue here, those bays would have been specifically called out in Suquamish s U&A, just as Judge Boldt saw fit to do in defining the U&A of the Tulalip Tribes and other tribes. It is of great significance, then, that they were not. Only Haro and Rosario Straits, located significantly to the west of the Subproceeding Areas, were specifically called out as included in Suquamish s U&A. Had Judge Boldt intended to include Chuckanut Bay, Samish Bay and the portions of Padilla Bay at issue here, he would have and could have specifically defined them. It is undisputed that he did not. It is also undisputed that Suquamish did not seek reconsideration of its U&A to include those areas after Judge Boldt ruled on April 18, The Suquamish wish this Court to focus on the detour language of the District Court. This, however, conveniently ignores the evidence discussed above. Judge Boldt and Dr. Lane both explicitly and unambiguously ruled out area 3 on 19

25 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 25 of 31 the map under consideration at the hearing from Suquamish s claimed U&A. Dr. Lane ruled out Suquamish going to Bellingham Bay and the Suquamish admitted that they would have had to go through Bellingham Bay to access the Subproceeding Areas Suquamish Wishes this Court to Review Irrelevant Regulations Issued After the Ruling of Judge Boldt. Upper Skagit has moved to strike all of the documents, declarations and regulation contained in Suquamish s excerpt of records which were issued subsequent to the Order which established Suquamish s U&A in 1975, or which were issued or dated after the entry of that 1975 Order. 11 Suquamish s attempt to get this Court to consider such irrelevant information is actually a not so subtle, impermissible collateral attack on the rulings in cases such as the Muckleshoot Trilogy and the Subproceeding 05-3 Case. This Court has consistently ruled that the actual evidence that was before Judge Boldt is all that can and should be considered in attempting to determine his intent. Moreover, evidence of either illegal fishing by Suquamish or their capacious efforts to insert extraneous 10 To put this in geographic perspective, starting at the Straits actually identified by Judge Boldt, Haro and Rosario are to the west of Bellingham Bay and in area 1 and 2, Hale Passage discussed by Suquamish is in area 3, but west of Bellingham Bay, Bellingham Bay is west of Chuckanut Bay and Samish and Padilla Bays are east and south of Bellingham Bay. There is no way to get to the Subproceeding Areas that hadn t been ruled out by both Judge Boldt and Dr. Lane. 11 The Motion to Strike concerns ER and ER

26 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 26 of 31 materials and regulations allegedly relating to the Subproceeding Areas is not evidence of Judge Boldt s intent. (Dkt. 62, ER 22. Ln ). As the District Court concluded: Evidence in the form of a tribe s claim to fishing rights, including claims encapsulated in fishing regulations and contemporary fishing practices is not probative of Judge Boldt s intent in delineating treaty-time fishing grounds and therefore is not evidence that the Court may properly consider in a Paragraph 25(a)(1) proceeding. Dkt. 62 / ER The information proffered by Suquamish in its excerpts of record is not probative and should not be considered by this Court. 5. The Suquamish Discussion of the Relevance of Hale Passage to this Inquiry Is Not Supported By The Facts and, At Best, Asks this Court to Make An Inference Instead of Relying on Actual Facts. Suquamish attempts to put words in Judge Boldt s mouth in order to find an inference, not actual evidence, that somehow Judge Boldt included Hale Passage in the Suquamish U&A. They even push this tortured logic one step further and claim that Judge Boldt created a primary / secondary right determination that recognized Suquamish U&A rights. In spite of the fact that a primary rights ruling in U.S. v. Washington was over a decade away in a case brought by Skokomish against Suquamish in Hood Canal, this attempt to piggyback off of a three party private agreement must fail. Judge Boldt did not include Hales Passage or the 21

27 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 27 of 31 private agreement that Suquamish now finds so persuasive in an order or judicially approved ruling, even though Judge Boldt clearly knew about the private agreement. Further, Judge Boldt never specifically included Hale Passage in his description of specific U&A anchors for Suquamish. Finally, once again, Dr. Lane did not include Hale Passage in her description of specific Suquamish U&A fishing grounds. 12 Hale Passage is west of Bellingham Bay and Suquamish never explains how trying to tie Hale Passage to Judge Boldt gets it past its own expert s opinion that Suquamish didn t go to Bellingham Bay and the Suquamish admission that that would have been the only way to get to the Subproceeding Areas. 6. The District Court Was Correct. Issue Preclusion Does Not Apply Here, But If It Did, It Was Suquamish that Lost the Subproceeding 05-3 Case and the Rulings Would, Of Necessity, Destroy the Suquamish Claim Here. The District Court properly determined that the holding in the Subproceeding Case could not be used in support issue preclusion by either party. While the analysis will be the same, the difference in the geographic location and the application of the facts or lack thereof to this case require a separate, independent examination. 12 Suquamish even goes so far as to speculate that the Lummi Nation in 1975 would never have entered into the private agreement unless Lummi recognized that Suquamish had rights there. Such speculation is the whole cloth with which Suquamish wishes to entice this Court, apparently hoping the Court will ignore the actual evidence required and instead rely on inferences and speculation to create a new test in these matters. Such a process invites a future of unending potential litigation. 22

28 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 28 of 31 Notwithstanding the foregoing, Suquamish, in appealing the District Court s issue preclusion ruling, neglects one critical and salient fact. Suquamish lost the Subproceeding 05-3 Case and all the determinations relevant here. To the extent this Court were inclined to find issue preclusion, then the ruling that Suquamish did not fish or have U&A east of Whidbey Island would surely apply here. Observing a map of Puget Sound, it is evident that the Subproceeding Areas at issue here are clearly east of Whidbey Island. Moreover, the determination that Judge Boldt only found a U&A for Suquamish in areas 1 and 2 and not in the disputed areas militates against Suquamish s claims here. However, as the District Court determined, this new claim with respect to the Subproceeding Areas requires a full examination. VIII. CONCLUSION This Court should affirm the District Court s grant of summary judgment in favor of Upper Skagit. The District Court applied the correct legal standards as previously articulated by this Court in limiting its inquiry to the actual facts in the record before Judge Boldt at the time Suquamish s U&A was determined in Upon a review of that record, the District Court came to the absolutely correct and inescapable conclusion that Judge Boldt could not have intended to grant U&A rights to Suquamish in the Subproceeding Areas, since there was no evidence in 23

29 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 29 of 31 the record before Judge Boldt to support such a finding. The District Court s decision should be affirmed. RESPECTFULLY SUBMITTED this 7th day of December, OFFICE OF THE TRIBAL ATTORNEY UPPER SKAGIT INDIAN TRIBE /s/ Harold Chesnin Harold Chesnin, WSB No. 398 David Hawkins, WSB No TETON LAW GROUP /s/ Andrew H. Salter Andrew H. Salter, WSB No Attorneys for Upper Skagit Indian Tribe 24

30 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 30 of 31 STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule , Appellee Upper Skagit Indian Tribe states that the following cases related to this case are pending in this Court: None DATED this 7th day of December, /s/ Harold Chesnin Harold Chesnin Attorney for Upper Skagit Indian Tribe 1

31 Case: , 12/07/2015, ID: , DktEntry: 26-1, Page 31 of 31 CERTIFICATE OF FILING AND SERVICE I hereby certify that on December 7, 2015, I electronically filed the foregoing document with the Clerk of the Court using the CM/ ECF system which will send notification of such filing to all parties registered in the CM/ECF system for this case. DATED this 7 th day of December, /s/ Harold Chesnin Harold Chesnin Attorney for Plaintiff- Appellee Upper Skagit Indian Tribe 1

32 Case: , 12/07/2015, ID: , DktEntry: 26-2, Page 1 of 1