Nos and UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. UNITED STATES OF AMERICA, et al., Plaintiffs

Transcription

1 Case: /27/2014 ID: DktEntry: 19-1 Page: 1 of 90 Nos and UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, et al., Plaintiffs v. STATE OF WASHINGTON, Defendant..... MAKAH INDIAN TRIBE, Petitioner-Appellee v. QUILEUTE INDIAN TRIBE and QUINAULT INDIAN NATION, Respondents-Appellants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE Nos sp RSM; 2:70-cv RSM The Honorable Ricardo S. Martinez United States District Court Judge BRIEF OF APPELLANTS QUINAULT INDIAN NATION AND QUILEUTE INDIAN TRIBE Eric J. Nielsen NIELSEN, BROMAN & KOCH PLLC 1908 E. Madison Street Seattle, WA (206) Attorneys for Appellant Quinault Indian Nation Lauren J. King FOSTER PEPPER PLLC 1111 Third Ave. Suite 3400 Seattle, WA (206) Attorneys for Appellant Quileute Indian Tribe John A. Tondini BYRNES KELLER CROMWELL LLP 1000 Second Ave., 38 th Floor Seattle, WA (206) Attorneys for Appellant Quileute Indian Tribe

2 Case: /27/2014 ID: DktEntry: 19-1 Page: 2 of 90 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned counsel for Appellants Quinault Indian Nation and Quileute Indian Tribe certify that none of them has a parent corporation(s) and no publicly-held corporation owns stock in either of the Appellant Tribes. i

3 Case: /27/2014 ID: DktEntry: 19-1 Page: 3 of 90 TABLE OF CONTENTS Page I. INTRODUCTION... 1 II. STATEMENT OF JURISDICTION... 4 A. The District Court Does Not Have Jurisdiction To Adjudicate Appellant Tribes Fishing Places In Ocean Waters Outside The Case Area B. This Court Has Jurisdiction Over Appellant Tribes Appeal C. Appellant Tribes Appeal Is Timely III. STATEMENT OF ISSUE PRESENTED... 7 IV. STATEMENT OF THE CASE... 9 A. Background Of United States v. Washington B. Federal Jurisdiction Over And Regulation Of Tribal Ocean Fisheries C. The Shifting Scope Of This Subproceeding (09-01) The Court Initially Limits The Case To Interpreting Decision I, Which Involved Only Waters Within Washington State The Court Reverses Course Appellant Tribes Move The Court To Reconsider Its Order V. SUMMARY OF THE ARGUMENT VI. ARGUMENT A. Standard Of Review B. The Appellant Tribes Sovereign Immunity Bars Adjudication Of Their Ocean Fishing Places In Waters Outside The Case Area Basic Principles Of Sovereign Immunity Applying Those Basic Principles Shows That Appellant Tribes Have Not Waived Their Immunity ii

4 Case: /27/2014 ID: DktEntry: 19-1 Page: 4 of The District Court Ignored The Basic Principles Of Sovereign Immunity When It Found A Waiver a) Quileute and Quinault Did Not Waive Their Sovereign Immunity By Intervening In U.S. v. Washington b) None Of Quinault Or Quileute s Other Actions Justify A Finding Of Implied Waiver (1) Sunset Order (2) Treaty Troll Case (3) Black Cod Subproceeding (4) Crab Subproceeding (5) Ocean Compact (6) Midwater Trawlers C. Adjudication Of Quinault and Quileute s Fishing Places Outside The Case Area Without Their Consent Is Beyond The Scope Of The District Court s Injunction And Unnecessary Due To The Self- Executing Nature Of Treaty Rights And The Established Federal Regulations Treaties Are Self-Executing And Immediately Obligatory Upon The Parties Federal Regulations Support The Tribes Fishing Rights VII. CONCLUSION iii

5 Case: /27/2014 ID: DktEntry: 19-1 Page: 5 of 90 TABLE OF AUTHORITIES CASES Page(s) Abbott v. Abbott, 560 U.S. 1 (2010)... 27, 54 Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006) Behrens v. Pelletier, 516 U.S. 299 (1996)... 7 Burlington Northern & Santa Fe Rwy. Co. v. Vaughn, 509 F.3d 1085 (9th Cir. 2007)... 4 Chemehuevi Indian Tribe v. California State Board of Equalization, 757 F.2d 1047 (9th Cir. 1985), rev d on other grounds, 474 U.S , 33 DC Comics v. Pac. Pictures Corp., 706 F.3d 1009 (9th Cir. 2013) Demontiney v. U.S., 255 F.3d 801 (9th Cir. 2001) Grant v. City of Pittsburgh, 98 F.3d 116 (3d Cir. 1996)... 7 Hans v. Louisiana, 134 U.S. 1 (1890) Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269 (9th Cir. 1991) Knox v. Southwest Airlines, 124 F.3d 1103 (9th Cir. 1997) Lewis v. Norton, 424 F.3d 959 (9th Cir. 2005) iv

6 Case: /27/2014 ID: DktEntry: 19-1 Page: 6 of 90 Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir. 1990)... 49, 56 Marks v. Clarke, 102 F.3d 1012 (9th Cir. 1996)... 7 McClendon v. U.S., 885 F.2d 627 (9th Cir. 1989)...passim Midwater Trawlers Co-op. v. Dept. of Commerce, 139 F. Supp. 2d 1136 (W.D. Wash. 2000), rev d in part 764on other grounds, 282 F.3d 710 (9th Cir. 2002)...passim Miller v. Wright, 705 F.3d 919 (9th Cir. 2013) Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009)... 4 Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir. 1998) Okla. Tax Comm n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 509 (1991)... 30, 32 Pan American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416 (9th Cir. 1989) Quileute Indian Tribe v. Babbitt, 18 F.3d 1456 (9th Cir. 1994)... 30, 33 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d 857 (9th Cir. 2004)... 6 Squaxin Indian Tribe v. Washington, 781 F.2d 715 (9th Cir. 1986)... 32, 33 U.S. v. Kaiyo Maru No. 53, 699 F.2d 989 (9th Cir. 1983) v

7 Case: /27/2014 ID: DktEntry: 19-1 Page: 7 of 90 U.S. v. Lower Elwha Tribe, 642 F.2d 1141 (9th Cir. 1981) U.S. v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000) U.S. v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000) U. S. v. Rodgers, 150 U.S. 249 (1893) U.S. v. Skokomish Indian Tribe, 764 F.2d 670 (9th Cir. 1985) U.S. v. U.S. Fidelity & Guaranty Co., 309 U.S. 506 (1940)... 30, U.S. v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S (1976) ( Decision I )...passim U.S. v. Washington, 459 F. Supp (W.D. Wash. 1978) ( Washington II )... 12, 38, 53, 55 U.S. v. Washington, 573 F.3d 701 (9th Cir. 2009) ( Skokomish )...passim U.S. v. Washington, 626 F. Supp (W.D. Wash. 1985) ( Washington III )... 15, 38, 41, 42 U.S. v. Washington, 730 F.2d 1314 (9th Cir. 1984) U.S. v. Winans, 198 U.S. 371 (1905) United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981) Upper Skagit Tribe v. Washington, 590 F.3d 1020 (9th Cir. 2010) vi

8 Case: /27/2014 ID: DktEntry: 19-1 Page: 8 of 90 Washington State Charterboat Ass n v. Baldrige, 702 F.2d 820 (9th Cir. 1983)... 53, 55 Washington v. Washington State Commercial Passenger Fishing Vessel Ass n, 443 U.S. 658 (1979) ( Fishing Vessel )... 9, 35, 52 Whitney v. Robertson, 124 U.S. 190 (1888) STATUTES 12 Stat Stat U.S.C et. seq U.S.C. 1811(a) U.S.C , U.S.C. 1855(f) U.S.C U.S.C U.S.C.A OTHER AUTHORITIES 50 C.F.R (i) C.F.R C.F.R C.F.R , C.F.R (c) C.F.R Fed. Reg (July 30, 1980) vii

9 Case: /27/2014 ID: DktEntry: 19-1 Page: 9 of Fed. Reg (May 11, 1983) Fed. Reg (May 2, 1986)... 15, Fed. Reg (May 4, 1987) Fed. Reg (May 6, 1987)... 15, Fed. Reg (May 4, 1988) Fed. Reg (May 8, 1989) Fed. Reg (May 7, 1990) Fed. Reg (May 8, 1991) Fed. Reg (May 6, 1992) Fed. Reg (May 6, 1993) Fed. Reg (May 4, 1994) Fed. Reg (May 3, 1995) Fed. Reg (May 6, 1996) Fed. Reg (June 6, 1996)... 17, 27, 54, Fed. Reg (May 5, 1997) Fed. Reg (May 5, 1999) Fed. Reg (May 3, 2007) Fed. Reg (May 5, 2009) Fed. Reg (May 5, 2010) Fed. R. App. P. 4(a)(4)(A)(iv)... 6 Fishery Conservation and Management Act of 1976, H.R. Rep , Local Rule 7(h)... 6 U.S. Const. art. VI, cl viii

10 Case: /27/2014 ID: DktEntry: 19-1 Page: 10 of 90 I. INTRODUCTION The Quileute Indian Tribe ( Quileute ) and the Quinault Indian Nation ( Quinault ) (together, the Appellant Tribes ) are two of over 20 tribes involved in a 44-year-old case that was initiated to protect the tribes treaty rights against infringement by Washington State. In a seminal 1974 ruling known as the Boldt Decision, the U.S. District Court for the Western District of Washington ruled that the treaties reserved to the tribes the right to take 50 percent of fish passing through their usual and accustomed fishing places. U.S. v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S (1976) ( Decision I ). Decision I also involved a determination of the usual and accustomed fishing areas of the participating tribes (including Quileute and Quinault) within Washington State to identify the areas where the state must recognize treaty fishing rights. Washington State jurisdiction over ocean waters has always been limited to three miles from shore. In this subproceeding, the Makah Tribe ( Makah ) advances a claim far afield from the dispute between the tribes and the state of Washington. Makah seeks to have the U.S. v. Washington court determine the boundaries of Quinault and Quileute s treaty-time fishing places in the Pacific Ocean. Makah seeks adjudication of boundaries beyond Washington State s jurisdiction and the U.S. v. Washington case area, which extends only three miles into ocean waters. 1

11 Case: /27/2014 ID: DktEntry: 19-1 Page: 11 of 90 Quinault and Quileute have never waived their sovereign immunity to adjudication of their ocean fishing areas outside the case area, and they do not consent to having the U. S. v. Washington court determine the location of those ocean fishing areas now. Nor is such a determination necessary. After Decision I, the United States expanded its jurisdictional reach over ocean waters to 200 miles. Pursuant to that exclusive jurisdiction, in , the federal government considered evidence provided by Quinault and Quileute regarding their usual and accustomed fishing grounds in the Pacific Ocean and issued still-effective regulations defining those boundaries. As this Court recently cautioned in specific regard to U.S. v. Washington, [t]he point of the lawsuit the United States filed was to protect Indian treaty rights from state infringement, not to sort out competing tribal claims.... [I]t is hard to see why the court still displaces state and federal fish management agencies. U.S. v. Washington, 573 F.3d 701, 709 (9th Cir. 2009) ( Skokomish ). Makah s request in this subproceeding is wholly unrelated to Washington State s infringement of Indian treaty rights. It seeks both to sort out competing tribal claims and to improperly displace federal fish management agencies. Quinault and Quileute sought to dismiss Makah s subproceeding on sovereign immunity grounds. The district court denied their motions. It ruled that Quinault and Quileute had waived their sovereign immunity by (1) intervening in 2

12 Case: /27/2014 ID: DktEntry: 19-1 Page: 12 of 90 U.S. v. Washington in and (2) by participating in certain subproceedings after Decision I. (ER27). The district court committed error. When Quinault and Quileute intervened in U.S. v. Washington in , neither the federal government nor Washington State had asserted jurisdiction over ocean waters outside the case area. Quinault and Quileute s intervention constituted a waiver of their sovereign immunity limited solely to the issues that were before the district court. Moreover, their participation in subsequent subproceedings never put at issue their ocean fishing locations outside the case area. Their earlier limited waiver does not subject Quinault and Quileute to the jurisdiction of the district court to determine the ocean fishing places outside the case area. Nor does a waiver arise simply because Makah wants a ruling. Sovereign immunity can only be waived by the party who holds it. Never in the 44-year history of U.S. v. Washington has a tribe s treaty fishing grounds outside state waters been adjudicated without that tribe s consent. Quinault and Quileute jointly request that this Court overrule the district court s ruling on sovereign immunity and remand this case with instructions that the district court dismiss Makah s request to determine their ocean treaty fishing locations outside the case area. 3

13 Case: /27/2014 ID: DktEntry: 19-1 Page: 13 of 90 II. STATEMENT OF JURISDICTION A. The District Court Does Not Have Jurisdiction To Adjudicate Appellant Tribes Fishing Places In Ocean Waters Outside The Case Area. United States v. Washington presented federal questions regarding the state of Washington s infringement of fishing rights conveyed to Indian tribes by treaty, giving rise to subject matter jurisdiction under 28 U.S.C The district court lacked subject matter jurisdiction over this subproceeding because Quinault and Quileute have not waived their sovereign immunity to permit an adjudication of their ocean fishing locations outside the territorial limit of the state of Washington. B. This Court Has Jurisdiction Over Appellant Tribes Appeal. This Court has jurisdiction over this appeal under 28 U.S.C because the district court s order is deemed to be a final decision pursuant to the collateral order doctrine. Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009). The collateral order doctrine permits appeal of interlocutory decisions that are conclusive, resolve important questions separate from the merits, and are effectively unreviewable on appeal from the final judgment in the underlying action. Id. at 106. An order denying a claim of tribal sovereign immunity is an appealable collateral order. Burlington Northern & Santa Fe Rwy. Co. v. Vaughn, 509 F.3d 1085, 1091 (9th Cir. 2007); see also DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1014 (9th Cir. 2013) ( [O]rders pertaining to immunities created by federal 4

14 Case: /27/2014 ID: DktEntry: 19-1 Page: 14 of 90 law ought to be immediately appealable via the collateral order doctrine. ). First, denial of sovereign immunity conclusively determine[s] the disputed question, that is, whether the tribal [entities] are immune from suit, because there will be nothing in the subsequent course of the proceedings in the district court that can alter the court s conclusion that the defendant[s are] not immune. Id. at 1090 (quoting Mitchell v. Forsyth, 472 U.S. 511 (1985)). Second, [c]ourts have generally found that claims of immunity are separate from the merits of the underlying action. Id. at 1091 (citing, inter alia, Mitchell, 472 U.S. at ; P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145 (1993)). Third, denial of sovereign immunity is effectively unreviewable on appeal from a final judgment: tribal sovereign immunity is an immunity from suit rather than a mere defense to liability; and... it is effectively lost if a case is erroneously permitted to go to trial. Id. at 1090 (quoting P.R. Aqueduct, 506 U.S. at ). The district court s improper denial of Quinault and Quileute s claim of sovereign immunity is properly appealable under the collateral order doctrine. C. Appellant Tribes Appeal Is Timely. On July 8, 2013, the district court issued its summary judgment order permitting Makah to proceed with adjudication of Quinault and Quileute s Pacific Ocean fishing places. (ER24-33). Quinault and Quileute timely filed a motion for 5

15 Case: /27/2014 ID: DktEntry: 19-1 Page: 15 of 90 reconsideration under Local Rule 7(h) on July 22, (ER ). The district court denied the motion for reconsideration on September 3, 2013 (ER17-23), and the Appellant Tribes timely submitted a notice of appeal on October 3, 2013 (ER ). Fed. R. App. P. 4(a)(4)(A)(iv). In denying a motion to stay pending appeal, the district court wrongly concluded that because Quinault and Quileute did not appeal its September 28, 2011 order denying their motions to dismiss, the Ninth Circuit lacks jurisdiction to consider an appeal from the district court s July 8, 2013 order on summary judgment in which it rejected the sovereign immunity defense and, for the first time, expressed the district court s intention to proceed with an adjudication of the Appellant Tribes ocean fishing boundaries. (ER1-16); see also Statement of the Case at Quinault and Quileute s appeal from the summary judgment order is unquestionably timely. Failure to appeal from the earlier order denying the motions to dismiss does not affect this Court s jurisdiction to review the summary judgment order. Knox v. Southwest Airlines, 124 F.3d 1103, (9th Cir. 1997). In Knox, this Court determined that an appeal from a second motion for 1 [A] timely filed motion for reconsideration under a local rule is construed as a motion to alter or amend a judgment under Rule 59(e). Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d 857, 863 (9th Cir. 2004). 6

16 Case: /27/2014 ID: DktEntry: 19-1 Page: 16 of 90 summary judgment denying a claim of qualified immunity claim was timely because it was filed within the required time following the district court s decision on that motion. Knox flatly rejected the erroneous argument that an interlocutory appeal from a successive motion for summary judgment is proper only if timely filed from the district court s decision on the first motion. Id. Knox followed Supreme Court and Ninth Circuit precedent holding that an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a final judgment subject to immediate appeal. Behrens v. Pelletier, 516 U.S. 299, 307 (1996) (emphasis in original)); see also Marks v. Clarke, 102 F.3d 1012, 1018 n. 8 (9th Cir. 1996) (under Behrens, a defendant appealing from a denial of an immunity defense may indeed have two bites at the appellate apple ); accord Grant v. City of Pittsburgh, 98 F.3d 116, 120 (3d Cir. 1996) (party who fails to appeal from an order denying a motion to dismiss based on an immunity defense may nevertheless appeal from a later order denying summary judgment addressing the same defense). Behrens, Marks, and Knox make it clear that this appeal is timely. III. STATEMENT OF ISSUE PRESENTED There is a strong presumption against waiver of tribal sovereign immunity, which must be unequivocally expressed. The sole exception to this general rule that waiver must be unequivocally expressed applies where a tribe implicitly 7

17 Case: /27/2014 ID: DktEntry: 19-1 Page: 17 of 90 waives its immunity by directly participating in litigation. But the scope of the implied waiver is limited to the issues necessary to decide the action brought by the tribe; implied waiver does not extend to related matters, even if those matters arise from the same set of underlying facts. In this case, it is Makah that has commenced litigation seeking a determination of Quinault and Quileute s treaty fishing places in the Pacific Ocean outside of Washington State jurisdiction. Quinault and Quileute have never waived their sovereign immunity to such determination. They intervened in United States v. Washington to protect their treaty rights against infringement by the state of Washington within the case area. Determination of their treaty fishing areas in the ocean beyond the jurisdiction of Washington State has never been necessary to decide any action brought by Quinault or Quileute. As to those areas, Quinault and Quileute have deferred to a determination made by the United States Department of the Interior in 1985, when the Department concluded they engaged in fishing activities 25 to 50 miles from shore during treaty times. Did the district court err when it held that by intervening in United States v. Washington and participating in matters unrelated to the location of their ocean fishing places, Quinault and Quileute implicitly waived their sovereign immunity as to adjudication of their ocean fishing areas? 8

18 Case: /27/2014 ID: DktEntry: 19-1 Page: 18 of 90 IV. STATEMENT OF THE CASE A. Background Of United States v. Washington. From 1854 to 1856, the United States entered into a series of treaties with Pacific Northwest Indian tribes to extinguish the last group of conflicting claims to lands lying west of the Cascade Mountains and north of the Columbia River in what is now the State of Washington. Washington v. Washington State Commercial Passenger Fishing Vessel Ass n, 443 U.S. 658, (1979) ( Fishing Vessel ). Those treaties were negotiated between Governor Isaac Stevens, on behalf of the United States, and the tribes living in Washington Territory. The treaties are sometimes referred to collectively as the Stevens treaties. Decision I, 384 F. Supp. at 405. The Quinault, Quileute, and Hoh Indian Tribes entered into the Treaty of Olympia. 12 Stat Like most of the Stevens treaties, the Treaty of Olympia reserved to the tribal signatories the right of taking fish at all usual and accustomed (U&A) grounds and stations... in common with all citizens of the Territory. Decision I, 384 F. Supp. at 372, 374. Makah entered into a separate treaty with the United States. 12 Stat Makah, Quileute, Hoh, and Quinault are the only treaty tribes located on Washington State s Pacific coast, and as such they are commonly referred to collectively as the Coastal Tribes. When the treaties were negotiated, the United States claim to ocean waters 9

19 Case: /27/2014 ID: DktEntry: 19-1 Page: 19 of 90 only extended three miles from shore. All nations had equal rights to fish beyond three miles. See U. S. v. Rodgers, 150 U.S. 249, (1893). In 1970, in response to [m]ore than a century of frequent and often violent controversy between Indians and non-indians over treaty right fishing, the United States filed suit against Washington State on behalf of itself and certain Indian tribes located in the state, seeking to protect the tribes treaty fishing rights from state infringement in waters of the state of Washington, i.e., inland waters and those within three miles of shore. Decision I, 384 F. Supp. at 327 n.1, 329. The complaint sought an injunction to prevent the state from enforcing provisions of state laws or regulations in such manner as to prevent or restrict members of said tribes from taking fish. Skokomish, 573 F.3d at 704 (quoting complaint). Quinault and Quileute intervened as plaintiffs. Decision I, 384 F. Supp. at 327 n.2. No injunction was sought against any tribe by any party. Skokomish, 573 F.3d at 704. Because the complaint was against Washington State concerning the tribes treaty fishing rights within the state s territorial jurisdiction, the scope of the case was expressly limited to implementation of the treaty rights within the geographic area defined by the district court in the Pretrial Order and Decision I as the case area. This case is limited to the claimed treaty-secured fishing rights of the plaintiff tribes, as they apply to areas within the Western District of 10

20 Case: /27/2014 ID: DktEntry: 19-1 Page: 20 of 90 Washington, within the watersheds of Puget Sound and the Olympic Peninsula north of Gray s Harbor, and in the adjacent offshore waters which are within the jurisdiction of the State of Washington. (ER92) (emphasis added); Decision I, 384 F. Supp. at , 400 (the case area includes adjacent offshore waters which are within the jurisdiction of the State of Washington ); see also id. at 405 (case area is outside boundaries of Indian reservations and areas of exclusive federal jurisdiction ) (emphasis in original). Judge Boldt ruled that the fishing provision of the Stevens treaties entitled the tribes to 50 percent of the harvestable fish that passed through their usual and accustomed fishing places. Decision I, 384 F. Supp. at 343, 350, 402. To effectuate the entitlement vis-à-vis state fishermen, Judge Boldt also determined the tribes usual and accustomed fishing areas within the case area. Judge Boldt acknowledged, however, that he did not conduct a complete inventory of each usual and accustomed fishing area. Id. at 402. Doing so would have been unnecessary to resolve the tribes claims. In language tracking the court s definition of the ocean waters included within the case area ( adjacent offshore waters which are within the jurisdiction of the State of Washington ), but without limitation as to a western boundary in ocean waters, Judge Boldt found that Quinault and Quileute possessed ocean treaty fishing rights in the ocean waters adjacent to their territory (Quinault) and in the tidewater and saltwater areas adjacent to their inland fishing locations and along 11

21 Case: /27/2014 ID: DktEntry: 19-1 Page: 21 of 90 the adjacent Pacific Coast (Quileute). Id. at 372, Judge Boldt relied heavily on Dr. Barbara Lane s expert anthropological reports on Quinault and Quileute treaty fishing areas in making these findings. See id. at 350. Dr. Lane explained in her testimony that her list of usual and accustomed fishing areas was not exhaustive because she understood the court would not determine any treaty fishing areas outside the case area. (ER ) (citing Dr. Lane s testimony and report). Shortly after the entry of Decision I, the court recognized Grays Harbor and its watershed as part of Quinault s usual and accustomed fishing areas based solely on its initial Finding of Fact 121. U.S. v. Washington, 459 F. Supp. 1020, 1038, (W.D. Wash. 1978) ( Washington II ). Importantly, Judge Boldt concluded that none of the court s orders prohibit members of the Quinault Tribe from exercising treaty rights at usual and accustomed grounds and stations outside the case area. Id. at 1038 (emphasis added); see also id. at 1042 ( The absence of a determination that a specific fishing area is a usual and accustomed fishing place of a particular tribe shall not preclude the tribe or its members from exercising treaty fishing rights at such location. ). B. Federal Jurisdiction Over And Regulation Of Tribal Ocean Fisheries. Ocean fisheries beyond state territorial waters (three miles offshore) were largely unregulated by the United States until That year, Congress enacted 12

22 Case: /27/2014 ID: DktEntry: 19-1 Page: 22 of 90 the Fishery Conservation and Management Act ( FCMA ), 16 U.S.C et. seq., giving the United States exclusive jurisdiction over fishing in ocean waters for the first time in history: For well over 300 years, one of the most basic principles of the freedom of the seas has been the freedom of fishing. That is, States have generally claimed and been accorded relatively narrow limits of jurisdiction and fishermen have had free and open access to all stock on the high seas (those waters outside territorial waters of coastal nations). In these international waters, no single State or group of States has had a right to exclude others from freely exploiting these common property resources. P.L , Fishery Conservation and Management Act of 1976, H.R. Rep , The FCMA was enacted to protect United States fisheries and provide for management of fisheries within a 200-mile exclusive economic zone ( EEZ ). Midwater Trawlers Co-op. v. Dept. of Commerce, 282 F.3d 710, 715 (9th Cir. 2002); 16 U.S.C. 1811(a). The Act vested the National Marine Fisheries Service ( NMFS ) with the authority to issue fishery management regulations within the EEZ. Id. (citing 16 U.S.C. 1853, 1855). The FCMA required that the federal government promulgate fishery management plans that accounted for the nature and extent of any Indian treaty fishing rights, as determined by the Secretary of Commerce ( Secretary ). Midwater Trawlers Co-op. v. Dept. of Commerce, Congress made a failed attempt to regulate fisheries out to 12 miles in 1966 by enacting the Bartlett Act. The failure of the federal attempts to manage ocean fisheries by treaty and later by the Bartlett Act led to a resource problem of crisis proportions. It was in this crisis atmosphere that the FCMA was enacted. U.S. v. Kaiyo Maru No. 53, 699 F.2d 989, 993 (9th Cir. 1983) (footnotes omitted). 13

23 Case: /27/2014 ID: DktEntry: 19-1 Page: 23 of 90 F. Supp. 2d 1136, (W.D. Wash. 2000), rev d in part on other grounds, 282 F.3d 710 (9th Cir. 2002) (quoting 16 U.S.C. 1853(a)(2)). Beginning in 1978, federal salmon regulations adopted under the FCMA delineated ocean fishing areas for all four Coastal Tribes. These regulations specified northern and southern boundaries for each Coastal Tribe s ocean fishing areas, but had no limit on how far west into the Pacific Ocean the tribes could fish, effectively recognizing tribal rights to fish up to the 200-mile western boundary of the EEZ. See, e.g., 45 Fed. Reg , (July 30, 1980); 48 Fed. Reg , (May 11, 1983). In 1981, after the FCMA was enacted, Makah commenced proceedings in United States v. Washington to judicially determine the western boundary of its own ocean usual and accustomed fishing area. (ER ). Makah explained to the court that none of the Coastal Tribes presented any evidence in Decision I concerning their traditional ocean fisheries outside the case area because treaty fishing rights outside the state s three-mile jurisdiction were not part of the case. (ER ). [Decision I] was a case against the State of Washington dealing with its rights and powers within its jurisdiction. Since it has no jurisdiction in the ocean we didn t deal with that problem and since in fact nobody had jurisdiction at that time we simply didn t address the problem of ocean fisheries. (ER ). The district court found that Makah s ocean treaty fishing area extended 14

24 Case: /27/2014 ID: DktEntry: 19-1 Page: 24 of 90 approximately 40 miles offshore to longitude W. U.S. v. Washington, 626 F. Supp. 1405, (W.D. Wash. 1985) ( Washington III ). Makah appealed, and this Court affirmed the decision with only the United States and Makah appearing as adverse parties. U.S. v. Washington, 730 F.2d 1314 (9th Cir. 1984). Quinault, Quileute, and Hoh have never requested a judicial determination of the boundaries of their ocean fishing areas. Instead, they worked with their treaty partner by way of the United States Department of the Interior to fulfill their treaty rights in federal waters. In 1985, the Regional Solicitor for the Department of the Interior issued an opinion concluding that Hoh, Quileute, and Quinault engaged in fishing activities 25 to 50 miles from shore at treaty times. (ER ); see also Midwater Trawlers, 139 F. Supp. 2d at The opinion relied on Dr. Barbara Lane s reports, Traditional Marine Fisheries of the Quileute and Hoh Indians (Aug. 4, 1977) and Traditional Ocean Fisheries of the Quinault Indians (Sept. 25, 1977) new reports that Dr. Lane drafted to address Quinault and Quileute s ocean fisheries after the FCMA was enacted. Id. After the Regional Solicitor issued its opinion, the Secretary issued halibut regulations. The 1986 regulations for the first time limited the fishing area for each of the four Coastal Tribes to ocean waters east of W. longitude, which lies approximately 40 miles west of the Washington coast. 51 Fed. Reg , (May 2, 1986). The Secretary applied the same boundaries in its 1987 salmon regulations. 52 Fed. 15

25 Case: /27/2014 ID: DktEntry: 19-1 Page: 25 of 90 Reg , (May 6, 1987). The Tribes northern and southern boundaries remained unchanged. Id. Since 1986, federal fishing regulations for all fisheries in the EEZ recognize the same western boundary for the four Coastal Tribes ocean fishing areas. 3 See 50 C.F.R ; see also 50 C.F.R The regulations indicate that any tribe s not just the Coastal Tribes usual and accustomed fishing area may be revised by a federal court. See 50 C.F.R (i) (halibut); 75 Fed. Reg , (May 5, 2010) (salmon). Unlike Makah, however, the Appellant Tribes have never commenced litigation seeking a determination of the western boundary of their usual and accustomed ocean fishing areas. The federal government reaffirmed its interpretation of Quileute and Quinault s ocean fishing areas in a 1994 letter from NOAA to the Department of Interior which addressed how to account for treaty rights in a new groundfish regulation: [NOAA has] reviewed the potential treaty Indian fishing rights to groundfish in the usual and accustomed fishing areas of the Makah, 3 See e.g., 52 Fed. Reg (May 4, 1987); 52 Fed. Reg , (May 6, 1987); 53 Fed. Reg , (May 4, 1988); 54 Fed. Reg , (May 8, 1989); 55 Fed. Reg , (May 7, 1990); 56 Fed. Reg , (May 8, 1991); 57 Fed. Reg , (May 6, 1992); 58 Fed. Reg , (May 6, 1993); 59 Fed. Reg , (May 4, 1994); 60 Fed. Reg , (May 3, 1995); 61 Fed. Reg , (May 6, 1996); 62 Fed. Reg , (May 5, 1997); 65 Fed. Reg (May 5, 1999); 72 Fed. Reg (May 3, 2007); 74 Fed. Reg (May 5, 2009). 16

26 Case: /27/2014 ID: DktEntry: 19-1 Page: 26 of 90 Hoh, Quileute, and Quinault tribes.... The issue has also been discussed with the representatives of the Department of Justice, the Department of the Interior, and the Assistant U.S. Attorney who represents the United States in the United States v. Washington litigation to which the four tribes are parties.... We also believe the tribal usual and accustomed fishing areas for groundfish are the same as they are for salmon and halibut.... [T]he areas have already been recognized for a long period of time under federal management measures applicable to the salmon and halibut fisheries. See, e.g., 59 Fed. Reg , May 4, 1994 (salmon) and 59 Fed. Reg , May 2, 1994 (halibut). (ER ). In 1996, the Secretary issued a final rule establishing the framework for implementing the Coastal Tribes treaty rights in groundfish, which includes a species of groundfish known as whiting. 61 Fed. Reg (June 6, 1996); 50 C.F.R The rule was consistent with all the previous rules governing other ocean fisheries; it defined the Coastal Tribes fishing areas as ocean waters east of W. longitude. 50 C.F.R (c); 50 C.F.R The regulations explain that the United States v. Washington procedure is not required for Federally regulated fisheries to the extent that there is no disagreement between the tribes and the Federal government. 61 Fed. Reg (June 6, 1996). Quinault, Quileute and the federal government currently have no dispute over the boundaries set by these regulations. C. The Shifting Scope Of This Subproceeding (09-01). On December 4, 2009, Makah filed this new proceeding in U.S. v. 17

27 Case: /27/2014 ID: DktEntry: 19-1 Page: 27 of 90 Washington, designated as Subproceeding Without consent from Quinault or Quileute, Makah asked the court to determine the western boundary of Quinault and Quileute s ocean fishing areas an issue that Quinault and Quileute have never put before that court. Makah also asked the district court to determine the northern boundary of Quileute s ocean fishing grounds. (ER578). 4 Makah sought these determinations under Paragraph 25(a)(1) and (a)(6) of the permanent injunction from U.S. v. Washington. (ER569). Paragraph 25 states in relevant part: (a) The parties or any of them may invoke the continuing jurisdiction of this court in order to determine: (1) Whether or not the actions intended or effected by any party (including the party seeking a determination) are in conformity with Final Decision # 1 or this injunction;.... (6) The location of any of a tribe s usual and accustomed fishing grounds not specifically determined by Final Decision #I. Skokomish, 573 F.3d at 705 n.16. Paragraph 25(a)(1) involves interpreting Judge Boldt s original rulings, and therefore does not involve consideration of new evidence or making any findings regarding fishing places outside of the area that was under consideration by Judge Boldt, i.e., Washington State. It is undisputed that a determination of ocean fishing locations beyond the case area is outside the scope of Paragraph 25(a)(1). 4 Hoh, the other Coastal Tribe, did not express interest in the whiting fishery, and Makah did not seek determination of Hoh s ocean fishing area. (ER570). 18

28 Case: /27/2014 ID: DktEntry: 19-1 Page: 28 of 90 (ER393). Makah alleged that the western boundary of Quinault and Quileute s ocean fishing areas is only five to ten miles offshore in other words, two to seven miles outside of Washington State jurisdiction. (ER , ER ). Such determination would necessarily involve consideration of new evidence and making new findings under Paragraph 25(a)(6). More importantly, it would involve a determination outside of the case area in exclusively federal waters, for which Quinault and Quileute have never waived their sovereign immunity. As the basis for its standing, Makah alleged that Quinault and Quileute s intent to participate in the Pacific whiting fishery threatened a reduction in Makah s harvest in that fishery. (ER575). While its request was almost entirely focused on whiting, Makah alleged on the final page of its pleading that it also suffered harm from having to compete directly with Quileute and Quinault in the salmon, halibut, and black cod fisheries. (ER578). 1. The Court Initially Limits The Case To Interpreting Decision I, Which Involved Only Waters Within Washington State. Quinault and Quileute each moved to dismiss Makah s request. (ER , ER ). They established that they had each presented evidence of their treaty time ocean fishing activities to their treaty partner, the United States, in 1985, and federal regulations had defined those areas since (ER , ER ). Quinault and Quileute argued that their sovereign immunity barred 19

29 Case: /27/2014 ID: DktEntry: 19-1 Page: 29 of 90 adjudication of their treaty ocean fishing locations outside Washington State jurisdiction in waters under the exclusive jurisdiction of the United States. (ER , ER ). They also argued that Makah lacked standing. (ER , ER ). Finally, Quinault contended Makah s request should be dismissed under the doctrine of laches because Makah waited too long to challenge Quinault s ocean fishing locations outside the case area. 5 (ER ). The district court denied the motions, but expressly limited the case to an interpretation of Judge Boldt s findings, rather than a determination of fishing grounds not previously adjudicated: The Court views this dispute as one regarding Judge Boldt s use of the term adjacent in both the Quinault and Quileute U&A s. (ER43). In other words, the court would only interpret Judge Boldt s original rulings, which were limited to areas within Washington State s jurisdiction. Consistent with that limited scope, the district court further ruled that the only evidence that would be considered is what was in the record that was before Judge Boldt. (ER43). With respect to Quinault s laches argument, the court ruled that Quinault need look no further than the record for the evidence that will enable them to respond to the [Makah] Request. (ER42-43). That ruling was also consistent with the limited scope of the subproceeding. 5 Quileute and Quinault s treaty ocean fishing locations were recognized by federal regulations in 1986 (51 Fed. Reg , (May 2, 1986)), over 20 years before Makah filed its RFD. 20

30 Case: /27/2014 ID: DktEntry: 19-1 Page: 30 of 90 The district court rejected Quinault and Quileute s sovereign immunity argument. Citing Washington III, a subproceeding brought by Quinault and Quileute to prevent preemption of their treaty salmon fishing within the case area, the district court concluded that Quinault and Quileute benefitted from the court s denial of Makah s sovereign immunity in that subproceeding and will not now be heard to assert that their sovereign immunity bars consideration of the Makah Request. (ER41-42). The court also cited the joint tribal opposition (to which Quinault and Quileute were signatories) to the proposed Sunset Order to end United States v. Washington, where the tribes pointed out that they had waived their sovereign immunity at least to the extent that modification[s] of the original decrees are necessary. (ER41-42, ) (emphasis added). Three tribes not party to the subproceeding filed a Motion for Reconsideration or Clarification of the order. (ER ). Those tribes claimed no stake in the outcome of the instant proceeding, but sought to clarify that nonrecord evidence could be presented under Paragraph 25(a)(6) to adjudicate treaty fishing locations not previously determined. (ER ). After clarifying that Paragraph 25(a)(6) involves new determinations based on non-record evidence, the district court reaffirmed that it views this subproceeding as addressing the meaning of the term adjacent as used by Judge Boldt in describing the Quinault and Quileute U&A s, and [t]herefore it shall proceed under Paragraph 25(a)(1), 21

31 Case: /27/2014 ID: DktEntry: 19-1 Page: 31 of 90 and evidence shall be limited to the record that was before Judge Boldt. (ER35) (emphasis added). Quinault and Quileute do not contest that they waived their sovereign immunity with respect to interpretation of Judge Boldt s original rulings regarding fishing rights within the case area under Paragraph 25(a)(1) when they intervened in However, they never waived their sovereign immunity as to a determination of their ocean fishing places outside the case area. 2. The Court Reverses Course. On August 8, 2012, Makah moved for partial summary judgment to establish its standing. (ER ). In its Motion, Makah sought to prove its standing to conduct an adjudication under Paragraph 25(a)(6) of the boundaries of Quinault and Quileute s ocean fishing areas outside the case area, despite the court s prior holdings that the case would be limited to an interpretation of Judge Boldt s findings on the original evidence under Paragraph 25(a)(1). (ER397, ER425). Quinault and Quileute responded that it would be inappropriate for the court to reconsider its prior orders on the scope of the subproceeding (six months after the most recent order). Additionally, they argued that if the district court did entertain Makah s argument, it would necessarily change the predicate legal basis for the court s previous order denying Quinault and Quileute s sovereign immunity and laches defenses. They therefore requested that the court address their sovereign 22

32 Case: /27/2014 ID: DktEntry: 19-1 Page: 32 of 90 immunity defense if it decided to entertain Makah s request to radically expand the scope of the subproceeding. (ER379, ER359). The court heard oral arguments on Makah s motion, and on July 8, 2013, it issued its order. (ER24-33). In a complete reversal of its previous rulings limiting the scope of the subproceeding, the district court ruled that its previous orders should be read as directing that this subproceeding proceed initially under Paragraph 25(a)(1), and then proceed under Paragraph 25(a)(6) if the court found (under Paragraph 25(a)(1)) that Judge Boldt did not specifically determine Quinault and Quileute s ocean fishing locations. (ER29). This ruling was illogical because (a) Makah admitted the western boundaries of the fishing areas it sought to adjudicate were at least 5-10 miles offshore and (b) Judge Boldt limited his determinations to the three-mile case area. In apparent recognition of this issue, the court later ruled that the parties could stipulate that Judge Boldt did not specifically determine the western boundary of Quinault and Quileute s ocean fishing locations or Quileute s northern boundary. (ER19-20). Despite a prior ruling in the subproceeding that [t]he concept of an adjudicated U&A... cannot be applied to limit a treaty fisherman s rights (ER37), the district court also ruled that tribal usual and accustomed fishing areas can only be established by this Court and [i]f there is no adjudicated U&A, there is no right to take 50 percent. (ER31). The court rejected Quinault and 23

33 Case: /27/2014 ID: DktEntry: 19-1 Page: 33 of 90 Quileute s assertion that their sovereign immunity barred determination of their fishing locations outside the case area, relying on its previous September 28, 2011 ruling on that issue. (ER30). The relevant text of the court s orders highlights the disparity between the district court s prior rulings and its July 8, 2013 Order on Makah s Motion for Partial Summary Judgment: Order on Motions to Dismiss: The Court views this dispute as one regarding Judge Boldt s use of the term adjacent in both the Quinault and Quileute U&A s [usual and accustomed fishing grounds].... Therefore the Quinault [and Quileute] need look no further than the record for the evidence that will enable them to respond to the Request for Determination. (ER43) (emphasis added). Order on Motions for Reconsideration: As the Court has stated previously, it views this subproceeding as addressing the meaning of the term adjacent as used by Judge Boldt in describing the Quinault and Quileute U&As. Therefore it shall proceed under Paragraph 25(a)(1), and evidence shall be limited to the record that was before Judge Boldt. (ER35) (emphasis added; citation omitted). Order on Makah Motion for Partial Summary Judgment: [T]he statement [from the court s prior orders] should be read, this subproceeding shall proceed initially under Paragraph 25(a)(1)... However, in the event that the issues cannot be resolved through a Paragraph 25(a)(1) proceeding, the Court could find that the Quinault and Quileute U&A s were not specifically determined by Judge Boldt, 24

34 Case: /27/2014 ID: DktEntry: 19-1 Page: 34 of 90 and turn to Paragraph 25(a)(6) for further proceedings. (ER29) (italics in original; other emphasis added). Until its July 8, 2013 summary judgment ruling, the district court did not indicate that it would turn to Paragraph 25(a)(6) for further proceedings. The court mentioned in its July 8, 2013 order that Makah properly invoked the Court s jurisdiction under both Paragraph 25(a)(1) and (a)(6), (ER29) (emphasis added), because Makah requested that the court both interpret existing findings under Decision I and make new findings under Paragraph 25(a)(6). Yet until its July 8, 2013 order, the district court decided to exercise its jurisdiction solely under Paragraph 25(a)(1), clearly limiting the subproceeding to only an interpretation of Judge Boldt s rulings. 3. Appellant Tribes Move The Court To Reconsider Its Order. On July 22, 2013, Quinault and Quileute filed a Motion for Reconsideration of the court s July 8, 2013 order, also moving in the alternative for certification. 6 (ER ). They requested the court reconsider their sovereign immunity arguments in light of its new ruling that the case could proceed under Paragraph 25(a)(6). (ER ). Quinault and Quileute further requested the court reconsider its rulings that their ocean fishing locations under the exclusive 6 Quileute and Quinault stated that they believed that the rulings were appealable as a matter of right, but were filing the motion for certification out of an abundance of caution. (ER318). 25

35 Case: /27/2014 ID: DktEntry: 19-1 Page: 35 of 90 jurisdiction of the federal government could only be determined by the court and that they did not have a treaty right to fish absent such determination. (ER ). Finally, Quinault and Quileute requested the court certify those issues for appeal if it denied their motion for reconsideration. (ER ). On September 3, 2013, the court denied the motion. (ER17-23). Quinault and Quileute filed their Notice of Appeal on October 3, (ER ). V. SUMMARY OF THE ARGUMENT Quinault and Quileute have never waived their sovereign immunity as to a judicial determination of their fishing grounds in the Pacific Ocean outside Washington State s territorial waters. When Quinault and Quileute intervened in the case in , and in 1974 when Judge Boldt issued Decision I, no one asserted jurisdiction over fishing in Pacific Ocean waters more than three miles from shore, and fishing areas outside state waters were not at issue. Quinault and Quileute s actions in the case after Decision I have never put their treaty fishing locations in ocean waters outside of the case area at issue. Instead, Quinault and Quileute have consistently treated waters outside the threemile case area as exclusively under the purview of federal regulatory agencies. Quinault and Quileute dealt exclusively with federal regulators to prove their usual and accustomed Pacific Ocean fishing grounds, and they completed that process in The treaty partners Quinault, Quileute, and the United States 26

36 Case: /27/2014 ID: DktEntry: 19-1 Page: 36 of 90 do not dispute the boundaries that have been established for nearly 30 years. [T]he United States v. Washington procedure is not required for Federally regulated fisheries to the extent that there is no disagreement between the tribes and the Federal government. 61 Fed. Reg (June 6, 1996). And, [a]bsent extraordinarily strong evidence to the contrary, the court will defer to the treaty parties interpretation. Midwater Trawlers, 139 F. Supp. 2d at ; see also Abbott v. Abbott, 560 U.S. 1 (2010) ( It is well settled that the Executive Branch s interpretation of a treaty is entitled to great weight. ) (internal quotation omitted). The district court erred in finding that Quinault and Quileute waived their sovereign immunity as to a determination of their ocean fishing locations outside the case area, and the district court should be reversed. VI. ARGUMENT Amidst the winding trails of its numerous subproceedings and ever-growing complexity, the underlying purpose of United States v. Washington can easily get lost. As this Court aptly observed in 2009: this case has become a Jarndyce and Jarndyce, with judges dying out of it and whole Indian tribes being born into it. The district court accurately stated fifteen years ago that the court has become a regulatory agency perpetually to manage fishing. Judges in the Western District of Washington have now been regulating fishing in the Puget Sound for 35 years, with the aid of a Fishery Advisory Board that the court created. The Constitution does not establish the district courts as permanent administrative agencies.... [I]t is hard to see why the court still displaces state and federal 27

37 Case: /27/2014 ID: DktEntry: 19-1 Page: 37 of 90 fish management agencies. As the Supreme Court held in Frew v. Hawkins, [t]he federal court must exercise its equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State s obligations is promptly returned to the State and its officials. The Court has repeatedly reminded us that institutional reform injunctions were meant to be temporary solutions, not permanent interventions, and could be kept in place only so long as the violation continued.... It is hard to see what we achieve in our continuing adjudications.... [W]e pretend to determine what the Indian tribes did 150 years ago at a time for which there is no evidence of especially high reliability and little evidence of any kind. This exercise is not law, and is not a reliable way to find facts, so it is hard to see why courts are doing it. Skokomish, 573 F.3d at (footnotes omitted). This particular subproceeding brings this Court s concerns to the forefront. The purpose of the case was to stop Washington State from violating the tribes treaty rights. The unconsented determination of the Appellant Tribes treaty fishing locations in federal waters achieves nothing besides burdening the court, Quinault and Quileute with an expensive and redundant second look at a task the federal government already handled nearly 30 years ago. The United States v. Washington case was never intended to provide a forum (completely independent of the Administrative Procedure Act) to challenge federal regulations regarding treaty fishing locations, or to usurp the role of the federal government. This Court should reverse the district court s ruling that Quinault and Quileute s limited participation in United States v. Washington constituted a 28

38 Case: /27/2014 ID: DktEntry: 19-1 Page: 38 of 90 waiver of their sovereign immunity to a determination of their treaty fishing areas in federal waters. The district court s waiver analysis is contrary to basic principles of sovereign immunity and unnecessarily expands the case far beyond its original purpose. A. Standard Of Review. The Ninth Circuit reviews issues of tribal sovereign immunity and subject matter jurisdiction de novo. Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006). B. The Appellant Tribes Sovereign Immunity Bars Adjudication Of Their Ocean Fishing Places In Waters Outside The Case Area. 1. Basic Principles Of Sovereign Immunity. There is no jurisdiction in United States v. Washington or in any case involving an Indian tribe to adjudicate matters outside of the issues necessary to decide the action brought by the tribe. McClendon v. U.S., 885 F.2d 627, 630 (9th Cir. 1989). Because they are sovereign entities, Indian tribes are immune from unconsented suit in state or federal court. Id. at 629. It is inherent in the nature of sovereignty not to be amenable to suit absent consent. Hans v. Louisiana, 134 U.S. 1, 13 (1890). A tribe s immunity extends to suits for declaratory and injunctive relief. Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271 (9th Cir. 1991). There is a strong presumption against waiver of tribal sovereign immunity. 29

39 Case: /27/2014 ID: DktEntry: 19-1 Page: 39 of 90 Demontiney v. U.S., 255 F.3d 801, 811 (9th Cir. 2001). Generally, a waiver of tribal sovereign immunity cannot be implied but must be unequivocally expressed. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); see also Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459 (9th Cir. 1994) (same). An exception to this general rule exists where a tribe implicitly waives its immunity by participating in litigation. Lewis v. Norton, 424 F.3d 959, (9th Cir. 2005). Courts must construe an implied waiver narrowly. Id. The implicit waiver of immunity that occurs by virtue of bringing an action is not necessarily broad enough to encompass related matters, even if those matters arise from the same set of underlying facts. McClendon, 885 F.2d at 630 (citations omitted). Courts have declined to extend an implied waiver to a number of related matters arising from the original action, including compulsory counterclaims in excess of a tribe s original claim, a claim for breach of a lease agreement executed as part of settlement of a lawsuit brought by a tribe, and a counterclaim for back taxes in a tribe s lawsuit challenging the tax. U.S. v. U.S. Fidelity & Guaranty Co., 309 U.S. 506 (1940); McClendon v. U.S., 885 F.2d 627; Okla. Tax Comm n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 509 (1991). Thus, even when a tribe implicitly waives its immunity by initiating an action, it does not waive its immunity from actions that could not have otherwise have been brought against it. Potawatomi, 498 U.S. at

40 Case: /27/2014 ID: DktEntry: 19-1 Page: 40 of 90 In McClendon, for example, McClendon sued a tribe for breach of a lease agreement that was central to a settlement between the parties from an earlier lawsuit. 885 F.2d at 629. This Court affirmed dismissal on the basis of tribal sovereign immunity, rejecting McClendon s argument that if the District Court had subject matter jurisdiction to adjudicate the rights of the United States as trustee and the Tribe as beneficiary to the claimed tribal lands occupied by [McClendon s predecessor-in-interest], then sovereign immunity of the United States and the Tribe is not an impediment to enforcement of the Appellants rights under the agreement settling the litigation. Id. at (citations omitted). This Court explained that, although by initiating the earlier action, the Tribe accepted the risk that it would be bound by an adverse determination of ownership of the disputed land, its participation in the litigation alone did not establish waiver with respect to related matters. Id. at 630. Initiation of the suit, in itself, did not manifest broad consent to suit over collateral issues arising out of the settlement of the litigation, such as enforcement of the lease agreement entered into as a part of settlement of the earlier suit. Id. at 631. See also Miller v. Wright, 705 F.3d 919 (9th Cir. 2013) (tribe did not implicitly waive its sovereign immunity in lawsuit challenging its imposition of cigarette taxes on non-indians by agreeing to dispute resolution procedures or by entering into a cigarette tax contract with Washington State). 31

41 Case: /27/2014 ID: DktEntry: 19-1 Page: 41 of 90 This limitation on the scope of a tribe s waiver of sovereign immunity applies to lawsuits for injunctive relief as well. This Court and the United States Supreme Court have consistently ruled that where a tribe seeks injunctive relief, it does not waive its immunity from counterclaims, even if the counterclaims are related to the requested relief. Potawatomi, 498 U.S. at ; U.S. Fidelity & Guaranty Co., 309 U.S. at 512; Squaxin Indian Tribe v. Washington, 781 F.2d 715, 723 (9th Cir. 1986); Chemehuevi Indian Tribe v. California State Board of Equalization, 757 F.2d 1047 (9th Cir. 1985), rev d on other grounds, 474 U.S. 9. In Potawatomi, the court rejected the state of Oklahoma s counterclaim for back taxes in a lawsuit brought by the Potawatomi Tribe for injunctive relief to foreclose the state s ability to tax cigarette sales on the reservation. 498 U.S. at The court concluded that the tribe had not waived its sovereign immunity merely by filing an action for injunctive relief. Id. at In so doing, the United States Supreme Court explicitly rejected the argument that trial courts do not need any independent jurisdictional basis to hear compulsory counterclaims. Id. at 509. The court noted that it had rejected the same argument more than one-half century earlier in United States v. United States Fidelity & Guaranty Co. Id. In that case, the court held that tribal immunity barred a compulsory counterclaim in excess of a tribe s original claim. The court explained that [t]he desirability for complete settlement of all issues between parties must.. 32

42 Case: /27/2014 ID: DktEntry: 19-1 Page: 42 of 90. yield to the principle of immunity. 309 U.S. at 512. See also Squaxin Indian Tribe, 781 F.2d at 723 (tribe s continued sales of liquor during injunction against it did not constitute consent to suit, even though such sales were the very reason for the injunction ); Chemehuevi, 757 F.2d at 1052 (sovereign immunity barred counterclaim for back taxes; initiation of a suit for declaratory and injunctive relief does not constitute consent to the Board s counterclaim. ). At the outer limits of Santa Clara Pueblo s admonition against implied waivers lies United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981). See Pan American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 420 (9th Cir. 1989) ( Oregon s finding of waiver probably tests the outer limits of Santa Clara Pueblo s admonition against implied waivers.... [S]everal post-oregon Ninth Circuit cases have reaffirmed the principle that tribal consent to suit must be unequivocally expressed. ); see also Quileute Indian Tribe v. Babbitt, 18 F.3d. at 1459 (same). In Oregon, the Yakama Indian Nation intervened in a case initiated by the United States against Oregon State to determine the state s authority to regulate tribal salmon fishing on the Columbia River. Washington State intervened in the case and sought to enjoin Yakama from harvesting Columbia River spring Chinook salmon. Id. The court rejected Yakama s argument that its immunity barred the state s action. In affirming the district court s denial of Yakama s immunity, this Court observed that Washington alleged that the very 33

43 Case: /27/2014 ID: DktEntry: 19-1 Page: 43 of 90 resource sought to be protected, the anadromous fishery, was in jeopardy. Since the existence of the salmon was inextricably linked to the res in the court s constructive custody, the court was empowered to enjoin interference with that custody. Id. at Not only was the scope of the injunction within the original case area, it was for conservation of the species, which the court deemed a basic assumption of the case and the predicate for the court s involvement in the first place. 7 Id. at Furthermore, Washington s claim was foreseeable when the Tribe intervened in the original suit. McClendon, 885 F.2d at 631 n.4 (distinguishing U.S. v. Oregon). 2. Applying Those Basic Principles Shows That Appellant Tribes Have Not Waived Their Immunity. The Court should not find a waiver here. Unlike in Oregon, the parties have not entered into any agreements to submit this dispute to the court, and the original decree in this case did not and could not determine any tribe s treaty fishing locations outside state waters because that area was not part of the initial complaint, not under the state or the federal government s jurisdiction at the time, and not necessary to decide the action. Also, unlike in Oregon, this subproceeding is not akin to an in rem action over the res in the court s custody. Makah s request to adjudicate Quinault and Quileute s ocean fishing places 7 Oregon concerned a threat to the species, which, if allowed to materialize, would have rendered the court s continuing jurisdiction meaningless. There is no such danger here. 34

44 Case: /27/2014 ID: DktEntry: 19-1 Page: 44 of 90 outside state waters is neither inextricably linked to the institutional reform of the state of Washington, nor foreseeable when the Tribe[s] intervened in the original suit. The original suit was filed to achieve institutional reform of Washington State with respect to tribal treaty rights. 8 The case is not about reforming the federal government, or usurping the federal government s role under the treaty and the FCMA. See Fishing Vessel, 443 U.S. at 696 (noting that the Magnuson Act place[s] a responsibility on the United States, rather than the State, to police the take of fish... to assure compliance with the treaties ). Furthermore, no tribe, including Makah, foresaw or could have foreseen this subproceeding when they intervened in the original suit; jurisdiction over the waters at issue here was nonexistent. This subproceeding names neither the United States nor Washington State, the original defendant, as parties. 9 Makah s suit does not arise from the same set of facts as the original action and is not even marginally related to that initial action. If Oregon signifies the outer limits of Santa Clara Pueblo s admonition against implied waivers, finding a waiver by Quinault or Quileute here demolishes those limits. 8 [I]nstitutional reform injunctions were meant to be temporary solutions, not permanent interventions, and could be kept in place only so long as the violation continued. Skokomish, 573 F.3d at (ER46-47) (rejecting state s motion to participate in this subproceeding because the area put in dispute by the Makah lies outside the territorial waters of the State of Washington. ) (emphasis added). 35

45 Case: /27/2014 ID: DktEntry: 19-1 Page: 45 of The District Court Ignored The Basic Principles Of Sovereign Immunity When It Found A Waiver. The district court erroneously ruled that when Quinault and Quileute intervened in the case in asking the Court to determine and enforce their treaty rights, they subjected themselves to the Court s jurisdiction for all purposes relating to the exercise of their treaty rights, thereby waiving their sovereign immunity with respect to determinations of the scope of their treaty rights, including their ocean fishing locations outside the territorial jurisdiction of the state. (ER19) (emphasis added). The district court also erroneously ruled that Quinault and Quileute waived their sovereign immunity by seeking to protect their river fisheries (within the case area) from preemptive fishing by Makah in 1983, and by joining other tribes in arguing that the court should continue its jurisdiction over United States v. Washington. (ER24-27). Neither conclusion is correct. The district court s findings are contrary to the rule in McClendon requiring that implied waivers be narrowly construed. McClendon, 885 F.2d at 630. a) Quileute and Quinault Did Not Waive Their Sovereign Immunity By Intervening In U.S. v. Washington. The district court ignored the undisputed fact that the original case was brought by the United States against Washington State for the limited purpose of determining and enforcing the Tribes treaty fishing rights against the State and within the State s territorial jurisdiction. The point of the lawsuit the United 36

46 Case: /27/2014 ID: DktEntry: 19-1 Page: 46 of 90 States filed was to protect Indian treaty rights from state infringement.... Skokomish, 573 F.3d at 709. Therefore, by intervening, Quinault and Quileute only implicitly waived their immunity as to issues necessary to protect their treaty rights from state infringement, not to a future determination of their treaty fishing places in waters over which no government had yet asserted jurisdiction. The issues necessary to resolve the case were (1) the State s authority to regulate the Indians treaty fishing, (2) how much fish the State had to share with the Indians, and (3) where the State had to allow for such sharing. Decision I, 384 F. Supp. at 334. A determination of Quinault and Quileute s treaty fishing locations in ocean waters outside the state s jurisdiction was not necessary to decide those issues. In fact, the parties could not have requested relief with respect to those waters even if they wanted to. The United States did not assert jurisdiction over fishing in ocean waters beyond three miles until 1976 two years after Decision I was issued, and five years after Appellant Tribes intervened. It was simply not part of Decision I at all, as Makah itself argued in its request that the court determine its ocean fishing locations following adoption of the FCMA: we did not deal with that problem [ocean fishing places] in Final Decision One because it was a case against the State of Washington dealing with its rights and powers within its jurisdiction. Since it has no jurisdiction in the ocean we didn t deal with that problem and since in fact nobody had jurisdiction at that time we simply didn t address the problem of ocean fisheries. 37

47 Case: /27/2014 ID: DktEntry: 19-1 Page: 47 of 90 (ER ). Furthermore, at all relevant times, Washington State s jurisdiction has been limited to three miles from shore. See 43 U.S.C.A ( The seaward boundary of each original coastal State is approved and confirmed as a line three geographical miles distant from its coast line ). In the 44-year history of this case, subproceedings relating to fishing locations were either brought by a tribe asserting the location of its own off reservation U&A, 10 primary rights to adjudicated overlapping U&As, 11 or clarification or interpretation of Judge Boldt s previous findings identifying the location of a tribe s U&A. 12 There has never been a subproceeding where the location of a tribe s treaty fishing locations outside the case area has been litigated without that tribe s consent. The only proceeding where the court has determined a fishing location outside of the case area post-decision I was where Makah itself made the request to determine its own area, thereby waiving its immunity. Makah s waiver, however, cannot function to waive the immunity of either 10 Washington II, 459 F. Supp. at (Tulalip Tribe s request for determination of U&A); Washington III, 636 F. Supp. at (Makah request for determination of ocean U&A). 11 U.S. v. Lower Elwha Tribe, 642 F.2d 1141 (9th Cir. 1981) (Makah/Lower Elwha dispute over primary rights in overlapping U&As); U.S. v. Skokomish Indian Tribe, 764 F.2d 670 (9th Cir. 1985) (Skokomish/Suquamish dispute over primary rights to overlapping U&A). 12 Upper Skagit Tribe v. Washington, 590 F.3d 1020 (9th Cir. 2010); U.S. v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000); U.S. v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000); Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir. 1998). 38

48 Case: /27/2014 ID: DktEntry: 19-1 Page: 48 of 90 Quinault or Quileute. The district court s ruling that Quinault and Quileute waived their immunity for all purposes when they intervened in a case to enforce their treaty rights visà-vis the state is unprecedented. Decision I involved issues wholly unrelated to their ocean fishing locations outside the case area, and nobody asserted jurisdiction at the time over those areas. b) None Of Quinault Or Quileute s Other Actions Justify A Finding Of Implied Waiver. Throughout the history of the case, Quinault and Quileute s actions have been consistent with their limited waiver. They deferred to federal authorities for ocean issues, and never initiated any litigation making a determination of their ocean fishing places outside the case area necessary. Contrary to the district court s ruling, neither Quinault nor Quileute has ever requested, explicitly or implicitly, that the court adjudicate their ocean fishing places outside of the state s jurisdiction. The two subproceedings that the district court relied upon in denying Quinault and Quileute s Motions to Dismiss do not prove waiver. Three other subproceedings and a separate case raised by Makah in its Response to those Motions likewise do not justify a finding of waiver. Rather, all six matters demonstrate that Quinault and Quileute have not waived their immunity to an adjudication of their ocean fishing grounds outside the case area. 39

49 Case: /27/2014 ID: DktEntry: 19-1 Page: 49 of 90 (1) Sunset Order The district court cited a portion of the joint tribal opposition (to which Quinault and Quileute were signatory) to the court s proposed Sunset Order as an operative waiver of their sovereign immunity. (ER41). The Sunset Order was a proposal from the court to dismiss United States v. Washington. The tribes opposed the proposal, arguing that the court should not sunset the case. (ER ). They stated that a reason to maintain jurisdiction of the case was because by seeking equitable relief, [the tribes] have waived their sovereign immunity at least to the extent that modification[s] of the original decrees are necessary. (ER607) (emphasis added). This statement is aligned with the holding in McClendon that the scope of a tribe s implied waiver is limited to the issues necessary to decide the action brought by the tribe and not related matters, even if those matters arise from the same set of underlying facts. 885 F.2d at 630. Judge Boldt s findings delineating Quinault and Quileute s usual and accustomed fishing areas within the case area are part of the original decree. Decision I, 384 F. Supp. at 405. There is no factual or legal basis to find that Quinault and Quileute s federally recognized fishing locations outside the case area are in any way part of the original decree. The tribal opposition to the proposed Sunset Order reiterates that the case is not about fishing locations in exclusive federal waters; rather, the court: 40

50 Case: /27/2014 ID: DktEntry: 19-1 Page: 50 of 90 is here involved in achieving lasting institutional change by reshaping the State of Washington s historical and pervasive disregard of the tribes treaty rights, and in enforcing the supremacy of federal treaty law.... It is a misperception to think that the Court is regulating the Northwest fisheries resources and that it is called upon to do so. (ER ). (2) Treaty Troll Case The district court also cited Washington III, 626 F. Supp. at 1471, for the proposition that Quinault and Quileute benefitted from the court s denial of Makah s immunity in that case, so should not be heard to assert their own immunity here. (ER41-42). That is not how sovereign immunity works. One tribe s waiver or a second tribe s benefitting from such waiver does not function to waive the second tribe s sovereign immunity. In that subproceeding, Quinault, Quileute, and Hoh sought to enjoin Makah s ocean salmon fishery, alleging that Makah s ocean fishing intercepted salmon before it returned to the other Coastal Tribes in-river fisheries, thereby threaten[ing] preemption of their traditional place-oriented river salmon fisheries. (ER ). That subproceeding was a resource allocation case based on each tribe s already-adjudicated fishing rights. U.S. v. Washington, 626 F. Supp. at Notably, Quinault, Quileute, and Hoh asked the federal government for relief first. They requested that NOAA establish an allocation scheme that would 41

51 Case: /27/2014 ID: DktEntry: 19-1 Page: 51 of 90 limit ocean harvesting in order to protect salmon returning to their in-river fisheries. (ER668). NOAA responded that it viewed the question of the appropriate size of the treaty Indian ocean coho catch as a tribal allocation problem.... [leaving] the dispute... for this Court to address. (ER ). Only then did Quinault, Quileute, and Hoh turn to the court for relief. The court ruled that because the issue was intertribal allocation (and the federal government may not allocate among sovereigns), and because [r]esolution of the matter before the Court does not challenge the validity or substance of the Secretary s Regulations... the [Magnuson Fisheries Conservation and Management Act] s judicial review provisions are inapplicable and the Secretary need not be separately joined, as Makah had argued. Washington III, 626 F. Supp. at This subproceeding established the federal government s position that it could not allocate among sovereigns and the federal court s ability to do so as part of the original decree. There is no legal authority or logical reason to conclude that the court s exercise of jurisdiction over allocation/interception disputes somehow operates to waive Quinault and Quileute s immunity as to adjudication of their ocean fishing places outside the case area. (3) Black Cod Subproceeding Makah has cited Subproceeding 96-1, relating to black cod, as further evidence of waiver. Although not relied upon by the district court, the activities of 42

52 Case: /27/2014 ID: DktEntry: 19-1 Page: 52 of 90 Quinault and Quileute in that subproceeding do not support a finding of waiver. In the black cod subproceeding, Quinault, Hoh, and Makah sought an injunction that would require Quileute to refrain from using certain gear in the black cod fishery, thus preventing Quileute from overharvesting the resource relative to the other Coastal Tribes. As part of their request, Quinault, Hoh, and Makah raised the narrow issue of interpretation of Judge Boldt s findings in Decision I regarding the northern and southern boundary of Quileute s adjudicated usual and accustomed fishing locations. Treaty fishing locations outside the case area were not at issue. (ER , ER476). (4) Crab Subproceeding Makah similarly argued waiver based on Subproceeding relating to crab. The district court did not cite this subproceeding in its ruling either. Regardless, this proceeding does not support a finding of waiver. In 2005, Quileute sought to delay the state crab fishery under a court-ordered Shellfish Implementation Plan to prevent the state from overharvesting crab. 13 In response, the state argued that Quileute did not have any treaty fishing rights at all beyond three miles because its ocean fishing grounds had not been adjudicated in United States v. Washington. In this subproceeding, Makah has grossly mischaracterized Quileute s 13 Quinault was not a party to this subproceeding. 43

53 Case: /27/2014 ID: DktEntry: 19-1 Page: 53 of 90 participation in the crab subproceeding as an affirmative waiver of its sovereign immunity to adjudication of its ocean fishing places outside the case area. (ER ) ( During a hearing before Magistrate Judge Strombom, Quileute made it clear... that [it] was affirmatively seeking a determination that it had treaty rights in such waters. ) But the hearing transcript that Makah cites in support of its argument reveals the opposite: The Tribe has asked only for relief in the area that the State acknowledges is part of its U&A to the north and to the south, so to the north to Sand Point and to the south to Destruction Island. Both of those boundaries should be of no dispute today. There is a question, however, about how far west the Tribe s rights go, the western boundary. Unfortunately, that is a legal question that has been repeatedly ruled upon by this Court as we discussed in our brief. Despite the State s position, an expressed adjudication of the Tribe s rights is not required here, nor is it even relevant. (ER ) (emphasis added). Quileute argued that even if its western boundary were relevant, (1) the treaties are self-executing, they don t require an adjudication for the federal government to recognize the rights of the tribe ; and (2) the federal government has, in fact validly, legally, clearly, repeatedly recognized the U&A area of the Quileute Tribe on several occasions over the past 20 years by repeatedly promulgating regulation[s] that specify the western boundary. (ER ). Quileute certainly did not waive its sovereign immunity in the crab subproceeding. Indeed, the court found that resolution of the state s argument 44

54 Case: /27/2014 ID: DktEntry: 19-1 Page: 54 of 90 regarding the western boundary of Quileute s ocean fishing grounds was not necessary to resolve the tribe s claims: this Court is of the opinion that resolution of the western boundary of the U&A is not an appropriate subject for the dispute resolution process as set forth in the Revised Shellfish Implementation Plan. (ER53-54). (5) Ocean Compact Makah has also argued that a separate subproceeding involving an ocean compact supports a finding of waiver. This too is incorrect. Instead, the ocean compact subproceeding demonstrates that Quinault and Quileute have addressed federal and state issues in separate forums, consistent with their unwavering position that ocean fishing aside from interception/allocation disputes is not the province of United States v. Washington absent waiver of sovereign immunity. In the first of five similar motions from 1981 to 1990, Quinault, Quileute, and Hoh sought an order permitting them to conduct invitational fisheries within one another s usual and accustomed areas. (ER ). The tribes informed the court that [t]he [Invitational] Compact was presented to and discussed by the Pacific Fishery Management Council (PFMC) which is responsible for developing ocean fishery management regulations for the Secretary of Commerce. (ER766-67). Because the PFMC approved the Compact provided that the Court also approve it (as certain waters in the tribes ocean fishing grounds are within the 45

55 Case: /27/2014 ID: DktEntry: 19-1 Page: 55 of 90 case area), the tribes filed a request with the court. (ER767). In 1985 and 1987, the Coastal Tribes (including Makah in 1985) submitted agreed orders for the same sharing arrangement, which the court approved. (ER , ER67-83, ER64-66). In 1989, the tribes informed the court that the federal regulations contemplate subject to the Court s approval that the three tribes may establish an invitational fishery. (ER644) (quoting the 1989 regulations). The United States concurred separately with the tribes request, noting that [a]s indicated by its signature to the invitational agreement... the Makah Tribe has no objection, and reiterating that the federal regulations expressly allow for such invitational fishing. (ER640). In 1990, Quinault, Quileute, and Hoh requested that the court dismiss the subproceeding because the Coastal Tribes (including Makah) had executed an agreement that permitted, among other things, ongoing invitational fisheries for the life of the agreement. (ER639). While Makah noted objections to the invitational aspect of these fisheries, it never objected to Quinault, Quileute, or Hoh s ocean fishing locations. (ER ). As with the other subproceedings, adjudication of Quinault and Quileute s ocean fishing locations outside the case area was not necessary to decide the issue. (6) Midwater Trawlers In support of its waiver argument in district court, Makah also relied on a 46

56 Case: /27/2014 ID: DktEntry: 19-1 Page: 56 of 90 case strikingly similar to the one at bar, where non-tribal fishing organizations challenged Quinault, Quileute, and Hoh s treaty rights to fish for whiting in the Pacific Ocean. The non-tribal fishing organizations challenged the 1996 federal regulations that provided for such rights, arguing in part that Quinault, Quileute, and Hoh did not have a treaty right to fish beyond three miles from shore because their ocean usual and accustomed fishing areas in those waters had not been judicially established. Midwater Trawlers, 139 F. Supp. 2d at Makah did not join the challenge to the Secretary s determination of the western boundary of those Tribes ocean fishing area. The district court rejected the fishing organizations argument: Treaties are self-executing and obligatory on the contracting parties as soon as they are ratified. See Washington v. Washington Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 693 n. 33, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). As set forth above, the Secretary was required by the Magnuson Act to recognize the Tribes treaty rights to take fish within U & A areas. Midwater can cite no authority for the proposition that the Secretary must wait for a court adjudication before attempting to implement these treaty rights. The Secretary employed the same boundaries for the U & A areas of the Hoh, Quinault, and Quileute regarding Pacific whiting that have been used for years without objection in the federal salmon and halibut regulations. See, e.g., 51 Fed.Reg , (May 2, 1986); 52 Fed.Reg , (May 6, 1987). As the defendants point out, a 1985 opinion of the Regional Solicitor for the Department of the Interior found evidence that the Hoh, Quileute, and Quinault engaged in fishing activities out to 25 to 50 miles. Report on Indian Treaty Right to Fish for Halibut from Lawrence E. Cox, Acting Regional Solicitor to Stanley Speaks, Portland Area Director, Bureau of Indian Affairs (April 1985) (Brief of Amici 47

57 Case: /27/2014 ID: DktEntry: 19-1 Page: 57 of 90 Curiae Quileute Tribe and Quinault Nation, Ex. B); see Dr. Barbara Lane, Traditional Marine Fisheries of the Quileute and Hoh Indians at 1 (Aug. 4, 1977) (Brief Of Amici Curiae Quileute Tribe and Quinault Nation, Ex. E); Dr. Barbara Lane, Traditional Ocean Fisheries of the Quinault Indians at 1 (Sept. 25, 1977) (Brief Of Amici Curiae Quileute Tribe and Quinault Nation, Ex. F). The U & A areas established in the salmon and halibut regulations were issued shortly after the Regional Solicitor s 1985 opinion. Midwater Trawlers, 139 F. Supp. 2d at The court upheld the regulations. On appeal, this Court affirmed that part of the decision upholding the Secretary s determination of the western boundary of Quinault, Quileute, and Hoh s ocean fishing areas. 282 F.3d at 718 ( The district court did not err in upholding the Secretary of Commerce s recognition of U & A fishing areas beyond the threemile territorial limit. ). To further bolster its waiver of immunity argument in the district court, Makah took the following sentence in Quinault and Quileute s amicus brief in Midwater Trawlers out of context: Midwater may attempt intervention in the U.S. v. Washington proceedings, but, because of the sovereign immunity of the Coastal Tribes, it could not otherwise challenge tribal fishing rights. Corrected Amicus Brief of Quileute Tribe and Quinault Nation In Support of Appellees and Affirmance ( Amicus Brief ), 2001 WL (9th Cir. Apr. 18, 2001). Makah maintained that the statement shows that Quinault and Quileute expressly waived immunity for the purpose of determining their treaty ocean fishing locations outside the case area. (ER489). That contention is specious. 48

58 Case: /27/2014 ID: DktEntry: 19-1 Page: 58 of 90 The statement was made in a section of Quinault and Quileute s brief regarding Midwater s standing to challenge the Secretary s description of the Coastal Tribes ocean fishing locations. The context of Quinault and Quileute s statement reveals that they were arguing not that Midwater could try to adjudicate their ocean fishing locations outside the case area, but that Midwater may not convert its challenge of the federal regulations 14 into an inquiry into [1] whether... the parties to the Stevens Treaties had intended to extinguish tribal fishing rights more than three miles from the Washington coast; and [2] whether the term fish in the Stevens Treaties included Pacific whiting. Amicus Brief, 2001 WL (9th Cir. Apr. 18, 2001). In arguing that Midwater could attempt to intervene in United States v. Washington to determine whether the parties intended to extinguish fishing rights more than three miles from the coast, Quinault and Quileute did not concede that Midwater could request adjudication of their ocean fishing grounds. Rather, consistent with their position over the last 40 years, Quinault and Quileute argued that court must defer to the treaty partners: 14 This Court has questioned whether a challenge to federal regulations over ocean fishing can even be brought in United States v. Washington. It is not clear, however, that a challenge to the federal regulation of ocean fishing could be brought in Washington. The Secretary of Commerce is not a party to that action. The suit concerns only fishing regulations promulgated by the State of Washington. The Washington court has not assumed jurisdiction over... the ocean fishery generally. Makah Indian Tribe v. Verity, 910 F.2d 555, 560 (9th Cir. 1990). 49

59 Case: /27/2014 ID: DktEntry: 19-1 Page: 59 of 90 Absent extraordinarily strong evidence to the contrary, where the parties to a treaty agree on its meaning the courts defer to that interpretation. Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184 (1982). The United States and the Coastal Tribes concur that the Framework Regulations description of the western boundary of the Coastal Tribes U&As is a reasonable accommodation until a judicial determination is made in U.S. v. Washington. 61 Fed. Reg. at Amicus Brief, 2001 WL It has always been Quinault and Quileute s position that the court, when properly vested with jurisdiction, has the power to confirm the boundaries of their ocean fishing grounds to include the areas currently set forth in the federal groundfish regulations. But to do so, all jurisdictional prerequisites must be met, including Quinault and Quileute s consent. In sum, Quinault and Quileute do not dispute that their intervention in this case in supports the legal conclusion that they implicitly waived their sovereign immunity with respect to interpretation of Judge Boldt s findings regarding their treaty fishing locations within the case area. However, their intervention does not support the legal conclusion that they waived their sovereign immunity to another tribe s request to determine their ocean treaty fishing locations in waters outside the case area under exclusive federal jurisdiction and 50

60 Case: /27/2014 ID: DktEntry: 19-1 Page: 60 of 90 regulatory authority. 15 This case would present the first (and only) ocean fishing ground adjudication conducted over the objection of the affected tribe. This Court should therefore reverse that part of the district court s July 8, 2013 order granting Makah s request that it determine Quinault and Quileute s ocean treaty fishing locations outside the case area, and hold that Quinault and Quileute s sovereign immunity bars the district court from asserting subject matter jurisdiction over that issue. C. Adjudication Of Quinault and Quileute s Fishing Places Outside The Case Area Without Their Consent Is Beyond The Scope Of The District Court s Injunction And Unnecessary Due To The Self-Executing Nature Of Treaty Rights And The Established Federal Regulations. Makah is attempting to thrust a trial in 2015 on Quinault and Quileute requiring them to adjudicate where those tribes fished some 160 years ago. But the federal government already considered evidence of Quinault and Quileute s treaty time fishing nearly 30 years ago. Regulations issued since 1986 specifically define the areas in the ocean where Quinault and Quileute may fish. Quinault and Quileute have never sought to adjudicate their western fishing boundaries because they have never had reason to do so. Unfortunately, in its July 8, 2013 order, despite decades of federal regulations reflecting the treaty partners interpretation of Quinault and Quileute s 15 Although a party in the case, the United States has never requested the court determine Quinault or Quileute s ocean treaty fishing areas in the waters under its jurisdiction. 51

61 Case: /27/2014 ID: DktEntry: 19-1 Page: 61 of 90 treaty fishing rights in the ocean waters at issue, and contrary to its own prior ruling that [t]he concept of an adjudicated U&A... cannot be applied to limit a treaty fisherman s rights (ER37), the district court justified its ruling by claiming that tribal usual and accustomed fishing areas can only be established by this Court and [i]f there is no adjudicated U&A, there is no right to take 50 percent (ER31). The district court did not cite any authority for that sweeping legal rule because there is none. The court s apparent belief not only contravenes wellestablished law, it exemplifies this Court s concerns in Skokomish questioning why district courts should purport to displace state and federal fish management agencies. Skokomish, 573 F.3d at Contrary to the district court s stated reasons for why it is choosing to wade into the unnecessary task of determining Quinault and Quileute s treaty-time ocean fishing locations, Quinault and Quileute do not need court approval to continue to fish in ocean waters. 1. Treaties Are Self-Executing And Immediately Obligatory Upon The Parties. The Supremacy Clause declares that treaties are the supreme Law of the Land. U.S. Const. art. VI, cl. 2. It is well-established that under the Supremacy Clause, a self-executing treaty is equivalent to an act of Congress. See Whitney v. Robertson, 124 U.S. 190, 194 (1888) (self-executing treaties have the force and effect of a legislative enactment. ). The Supreme Court has held that a treaty is obligatory upon the parties as soon as it is ratified. Fishing Vessel, 443 U.S. at

62 Case: /27/2014 ID: DktEntry: 19-1 Page: 62 of 90 n.33; U.S. v. Winans, 198 U.S. 371, (1905) ( the [treaty] right was intended to be continuing against the United States and its grantees as well as against the state and its grantees. ). Quinault and Quileute s right to fish in their usual and accustomed fishing areas is not a privilege granted by a court, but a right reserved to them in their treaty. Winans, 198 U.S. at 381. Decision I correctly recognizes that the Stevens Treaties are self-executing, and that a tribe s exercise of its treaty fishing rights is not predicated on a court s determination of a tribe s usual and accustomed fishing locations. Judge Boldt specifically ruled that the court did not need to establish a tribe s fishing location before a tribe could exercise its treaty right to fish in that area. Washington II, 459 F. Supp. at 1038, Thus, contrary to the district court s ruling, Quinault and Quileute do not need a district court to determine their fishing rights to continue to fish. 2. Federal Regulations Support The Tribes Fishing Rights. Consistent with the principle that treaties are obligatory on the parties upon ratification (and not judicial determination), the FCMA requires the Secretary to adopt management plans that account for treaty rights. 16 U.S.C. 1853; Washington State Charterboat Ass n v. Baldrige, 702 F.2d 820, 823 (9th Cir. 1983). The FCMA does not require a prior judicial determination of the scope of the treaty right. See Midwater Trawlers, 139 F. Supp. 2d at 1144 (finding no 53

63 Case: /27/2014 ID: DktEntry: 19-1 Page: 63 of 90 authority for the proposition that the Secretary must wait for a court adjudication before attempting to implement these treaty rights. ). In fact, the Secretary must act. In a subproceeding involving certain tribes treaty rights to halibut, Judge Rothstein determined that regulations established prior to her determination that the tribes had treaty rights to halibut had violated the tribes rights by not accounting for them. (ER56-63). In other words, the treaty right should have been accommodated prior to her judicial determination. 61 Fed. Reg (June 6, 1986). Quinault, Quileute, Hoh, and the United States the parties to the Treaty of Olympia have interpreted their Treaty as reserving to the tribal signatories the right to fish in certain well-defined ocean areas under the exclusive jurisdiction of the United States based on evidence of their fishing during treaty times. See Midwater Trawlers, 139 F. Supp. 2d at 1144 (citing the evidence of Quinault and Quileute s treaty time fishing activity that was examined prior to adoption of the regulations delineating their ocean treaty fishing locations outside the case area). The treaty partners interpretation has been reiterated in federal regulations since 1986 and in communications among the federal agencies responsible for fulfilling tribal treaty rights. Neither Makah nor any other party alleges that Quinault or Quileute are exercising their reserved treaty fishing rights in ocean waters outside the locations delineated in those regulations. 54

64 Case: /27/2014 ID: DktEntry: 19-1 Page: 64 of 90 It is well settled that the Executive Branch s interpretation of a treaty is entitled to great weight. Abbott v. Abbott, 560 U.S. 1 (quoting Avagliano, 457 U.S. at 185). Where the treaty partners do not dispute the boundaries, [a]bsent extraordinarily strong evidence to the contrary, the court will defer to the treaty parties interpretation. Midwater Trawlers, 139 F. Supp. 2d at (citing Sumitomo Shoji America, 457 U.S. at n.10). that: Here, the Executive Branch has determined, consistent with established law, the United States v. Washington procedure is not required for Federally regulated fisheries to the extent that there is no disagreement between the tribes and the Federal government. The administrative procedures set up by this rule should ensure the orderly implementation of new treaty fisheries without the need to resort to the courts except in unusual circumstances. 61 Fed. Reg , (June 6, 1996). Support for this proposition is found in statutes, regulations and court rulings. See, e.g., Midwater Trawlers 139 F. Supp. 2d at ; Washington II, 459 F. Supp (adjudication not necessary in order for a tribe to exercise its treaty right); 16 U.S.C (United States is required to adopt management plans consistent with the treaties); Washington State Charterboat Ass n, 702 F.2d 820 (same); (ER61) (adjudication is not necessary for the federal government to accommodate treaty rights); 50 C.F.R (defining tribal fishing locations and stating that the Secretary will allocate groundfish in accordance with the sovereign status and co-manager role of Indian 55

65 Case: /27/2014 ID: DktEntry: 19-1 Page: 65 of 90 tribes ). There is nothing to accomplish in second guessing the treaty partners judgment nearly 30 years after the fact. Given the existing regulations and the selfexecuting nature of the treaties, Makah s request does nothing to advance any of the goals of the underlying case. Moreover, as this Court observed over 20 years ago, [i]t is not clear, however, that a challenge to the federal regulation of ocean fishing could be brought in Washington. Makah Indian Tribe v. Verity, 910 F.2d at 560. If Makah disagreed with the federal regulations recognizing Quinault and Quileute s ocean fishing locations, its remedy would have been to challenge the regulations. 16 U.S.C. 1855(f). Makah failed to do so for nearly 30 years. 16 In short, the district court s justification for why it is proceeding with an adjudication of the Quinault and Quileute s fishing locations is wholly unsupported. There is no support for the district court s finding that Quinault and Quileute have waived their sovereign immunity, nor are they required to do so in order to enjoy their existing fishing rights. VII. CONCLUSION When waiver of sovereign immunity is based (as here) on a tribe s voluntary participation in litigation, the scope of the resulting waiver is limited to the issues necessary to decide the action brought by the tribe; the waiver is not necessarily 16 Makah has never challenged the regulations deliniating Quinault and Quileute s ocean fishing locations. 56

66 Case: /27/2014 ID: DktEntry: 19-1 Page: 66 of 90 broad enough to encompass related matters, even if those matters arise from the same set of underlying facts. McClendon, 885 F.2d at The scope of Quinault or Quileute s treaty fishing places beyond state waters was not necessary to decide Decision I. For that reason, the boundaries of Quinault and Quileute s ocean treaty fishing places outside of three miles were never adjudicated by Judge Boldt. And, in the 44-year history of United States v. Washington, neither Quinault nor Quileute has requested any relief that made the scope of their ocean fishing places necessary to decide their request. Furthermore, the treaty partners interpretation of the geographic scope of Quinault and Quileute s ocean fishing areas has been defined by federal regulations for almost 30 years. The treaty partners do not dispute those boundaries. Quinault and Quileute have exercised their treaty right to fish in ocean waters under federal jurisdiction for decades under those federal regulations without any objection from Makah until Quinault and Quileute expressed a desire to harvest whiting. Plainly, conducting the requested adjudication is unnecessary and would set a troubling, expansive precedent. This Court has questioned why the equitable decree in this case remains in force at all. Skokomish, 573 F.3d at 709. It now has the option to keep United States v. Washington within the parameters of its original purpose, or to make the court a permanent administrative agenc[y]. Id. at 709. It should choose the former, and reverse that part of the district court s July 57

67 Case: /27/2014 ID: DktEntry: 19-1 Page: 67 of 90 8, 2013 order granting Makah s request to determine Quinault and Quileute s ocean treaty fishing locations outside the case area. Quinault and Quileute s sovereign immunity bars the district court from asserting subject matter jurisdiction over that issue. Dated: January 27, 2014 Respectfully submitted, FOSTER PEPPER PLLC By: s/ Lauren J. King Lauren J. King, WSBA Attorneys for Appellant Quileute Indian Tribe BYRNES KELLER CROMWELL LLP By: s/ John A. Tondini John A. Tondini, WSBA Attorneys for Appellant Quileute Indian Tribe NIELSEN BROMAN & KOCH PLLC By: s/ Eric J. Nielsen Eric J. Nielsen, WSBA Attorneys for Appellant Quinault Indian Nation 58

68 Case: /27/2014 ID: DktEntry: 19-1 Page: 68 of 90 STATEMENT OF RELATED CASES Appellant Tribes are aware of the following related cases pending in the Court that would be deemed related to this case under Ninth Circuit Rule : Lower Elwha Klallam Indian Tribe v. Lummi Nation, No , Tulalip Tribes v. Suquamish Indian Tribe, No , and United States v. Washington (In re Culverts), No These appeals arise out of the same underlying district court proceeding, but involve unrelated disputes and are separate district court subproceedings (Nos. 2:11-sp RSM, 2:05-sp RSM, 2:01-sp-01- RSM). FOSTER PEPPER PLLC By: s/ Lauren J. King Lauren J. King, WSBA Attorneys for Appellant Quileute Indian Tribe BYRNES KELLER CROMWELL LLP By: s/ John A. Tondini John A. Tondini, WSBA Attorneys for Appellant Quileute Indian Tribe NIELSEN BROMAN & KOCH PLLC By: s/ Eric J. Nielsen Eric J. Nielsen, WSBA Attorneys for Appellant Quinault Indian Nation 59

69 Case: /27/2014 ID: DktEntry: 19-1 Page: 69 of 90 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 13,984 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word Times New Roman 14 point font. Dated: January 27, 2014 FOSTER PEPPER PLLC By: s/ Lauren J. King Lauren J. King, WSBA Attorneys for Appellant Quileute Indian Tribe 60

70 Case: /27/2014 ID: DktEntry: 19-1 Page: 70 of 90 CERTIFICATE OF SERVICE I hereby certify that on January 27, 2014, I electronically filed the foregoing Brief of Appellants Quinault Indian Nation and Quileute Indian Tribe with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Dated: January 27, By: s/ Lauren J. King Lauren J. King, WSBA Attorneys for Appellant Quileute Indian Tribe 61

71 Case: /27/2014 ID: DktEntry: 19-1 Page: 71 of 90 ADDENDUM TO OPENING BRIEF OF APPELLANTS QUINAULT INDIAN NATION AND QUILEUTE INDIAN TRIBE

72 Case: /27/2014 ID: DktEntry: 19-1 Page: 72 of 90 TABLE OF CONTENTS TO ADDENDUM 51 Fed. Reg (May 2, 1986)... 1 Excerpts from 52 Fed. Reg (May 4, 1987)... 4 Excerpts from 61 Fed. Reg (June 6, 1996)... 8 Excerpts from Letter from Lawrence E. Cox, Acting Regional Solicitor Office of the Regional Solicitor, to Stanley Speaks, Portland Area Director Bureau of Indian Affairs, dated April 18, 1985 (ER362, ER ) Letter from Terry D. Garcia, General Counsel, U.S. Department of Commerce National Oceanic and Atmospheric Administration, to John D. Leshy, Solicitor, Department of the Interior, dated October 17, 1994 (ER )... 16

73 Case: /27/2014 ID: DktEntry: 19-1 Page: 73 of FR RULES and REGULATIONS DEPARTMENT OF COMMERCE 50 CFR Part 301 [Docket No ] Pacific Halibut Fisheries United States Treaty Indian Tribes Friday, May 2, 1986 *16471 AGENCY: National Marine Fisheries Service (NMFS), NOAA, Commerce. ACTION: Emergency interim rule and request for comment. SUMMARY: The Assistant Administrator for Fisheries, NOAA, issues an emergency interim rule to implement measures recommended by the International Pacific Halibut Commission (Commission) and approved by the Secretary of Commerce (Secretary) to govern fishing by certain U.S. treaty Indian tribes in the Pacific halibut fishery. These regulations establish a special quota and commercial fishing season for halibut off the State of Washington for members of four U.S. treaty Indian tribes. DATES: This rule is effective April 29, 1986 until modified, superseded, or rescinded. Comments are due by May 29, ADDRESS: Send comments to Mr. Rolland A. Schmitten, Director, Northwest Region, National Marine Fisheries Service, 7600 Sand Point Way NE., BIN C15700, Seattle, WA FOR FURTHER INFORMATION CONTACT:R.A. Schmitten at SUPPLEMENTARY INFORMATION: The Commission, under the Convention between the United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (signed at Ottawa, Ontario, on March 2, 1953), as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979), recommended at its annual meeting on January 27-30, 1986, that the government of the United States take regulatory action, pursuant to its domestic law and separate from the Commission s action, to provide for the United States special obligations to four treaty Indian tribes with historic treaties containing fishing provisions. Those recommendations, which have been approved by the Secretary, include establishing a special Subarea 2A-1 under within the Commission s Regulatory Area 2A, providing a suballocation of 50,000 pounds of halibut to the four treaty Indian tribes in Regulatory Area 2A, and setting an open season for commercial halibut fishing by the tribes beginning April 30 and closing when the subquota is reached or on October 31, whichever occurs first. Consultation was had with the Coast Guard at a meeting of the Pacific Fishery Management Council on March 11-13, 1986, in Portland, Oregon. The Secretary has authority to promulgate regulations implementing the Commission s recommendations under the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773c. The regulations establish Subarea 2A-1 under which includes the off-reservation halibut fishing areas of the four treaty Indian tribes in the ocean off the coast of Washington and in the Strait of Juan de Fuca. Subarea 2A-1 is not intended to describe precisely the historic off-reservation halibut fishing places of all tribes, as the location of those places has hot been determined. The regulations also provide a tribal suballocation of 50,000 pounds based on the Commission s conservative estimate of the amount of fish equalling half of the exploitable biomass of halibut within Subarea 2A-1. The regulations establish a special commercial season in Subarea 2A-1 beginning April 30 and ending October 31, or when the tribal subquota is reached, whichever occurs first, which is designed to maximize the tribes opportunity to harvest their full allocation. The regulations also establish a special U.S. treaty Indian tribal subsistence and ceremonial season in Subarea 2A-1 which begins on April 30 and ends on December 31, This subsistence and ceremonial fishery allows tribal members to take and retain up to two halibut per day on hook-and-line gear, but not to sell the fish caught. The regulations are time critical and require implementation without prior public comment and without delaying their effectiveness although public comment has been invited for 30 days after their effective date. They are the result of intricate negotiations following a lawsuit filed by the Makah Tribe in 1985 to force the Federal government to protect their asserted APPELLANTS' ADDENDUM - 1

74 Case: /27/2014 ID: DktEntry: 19-1 Page: 74 of 90 treaty-protected fishing rights. Given the protracted and bitter litigation over treaty Indian salmon rights, now in its eighteenth year, NOAA s representatives to the IPHC deemed it in the best interests of the United States and the halibut fishery to support the tribes proposals for a special season and allocation beginning in The United States position, which resulted in the Commission s recommendations, was based on the outcome of a series of meetings with all affected parties, including all segments of the non-indian halibut fishing community. The Commission s recommendations and implementing regulations are the popularly preferred alternative to continued litigation. It was the Commission s recommendation, and the common understanding of the affected parties, that regulations would be promulgated in time to provide for a treaty Indian commercial season beginning on April 30, Without emergency implementation of the regulations, treaty Indian halibut fishing will be prevented until June 16, the beginning of the regularly scheduled commercial season in Regulatory Area 2A. Failure to promulgate the regulations effective immediately would negate the Commission s action, breach the agreements reached among the affected parties, undermine the Federal government s credibility, and force the matter to the attention of the courts. Classification The Assistant Administrator for Fisheries, NOAA, has determined that this rule is necessary to respond to an emergency situation and is consistent with the Northern Pacific Halibut Act and other applicable law, including the United States obligations to Canada and to U.S. treaty Indians. Absent emergency issuance, tribal commercial fishing would be prevented until June 16, 1986, the opening of the regularly scheduled commercial season for all citizens in the Commission s Regulatory Area 2A. Given the time constraints, treaty obligations, and international obligations under the Protocol, the Assistant Administrator finds there is good cause to promulgate these regulations on an emergency basis and that it is impracticable and contrary to the public interest in resolving litigation issues to require notice and public comment, or to delay the effective date of the regulations, under the provisions of section 553 (b) and (d) of the Administrative Procedure Act. The policy of NOAA is, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments, suggestions, or objections regarding this rule to the Regional Director at the address above. Comments must be received by the date specified above. This emergency rule is exempt from the normal review procedures of Executive Order as provided in section 8(a)(1) of that order. This rule is being reported to the Director of the Office of Management and Budget with an explanation of why it is not possible to follow the procedures of that order. In *16472 addition, NMFS has determined that this rule is not a major rule within the terms of E.O because it will not have a major effect on the economy and will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions. This rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior public comments. The implementation of a treaty Indian fishery by these regulations is not a major Federal action which would significantly affect the quality of the human environment within the meaning of section 102(2)(c) of the National Environmental Policy Act. This rule does not contain any collection of information requirement for purposes of the Paperwork Reduction Act. List of Subjects in 50 CFR Part 301 Fisheries, Fishing. Dated: April 29, Carmen J. Blondin, Deputy Assistant Administrator For Fisheries Resource Management, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR Part 301 is amended as follows: APPELLANTS' ADDENDUM - 2

75 Case: /27/2014 ID: DktEntry: 19-1 Page: 75 of 90 PART 301 [AMENDED] 1. The authority citation for Part 301 continues to read as follows: Authority: 5 UST 5; TIAS 2900; 16 USC k. 2. In the table of contents, a new section designation is added, to read as follows: 50 CFR United States treaty Indian tribes. 50 CFR A new is added, to read as follows: 50 CFR United States treaty Indian tribes. (a) Purpose. The purpose of this section is to implement recommendations of the International Pacific Halibut Commission (IPHC) to govern fishing for halibut by four United States treaty Indian tribes in certain marine fishing areas off the coast of Washington and in the Strait of Juan de Fuca. (b) Relation to other laws. Except as provided in this section, all regulations of the IPHC in this part apply to halibut fishing by members of United States treaty Indian tribes. (c) Definitions. United States treaty Indian tribes means the Makah, Quileute Hoh, and Quinault tribes located in the State of Washington. (d) Area. Within IPHC Regulatory Area 2A, Subarea 2A-1 includes waters off the coast of Washington from the U.S.-Canada border south to N. latitude (Point Chehalis) and east of W, longitude. Within Subarea 2A-1, boundaries of a tribe s fishery may be revised as ordered by a Federal court Tribe Boundaries Makah... North of 48 degrees N. latitude (Norwegian Memorial), east of 125 degrees W. longitude, and west of longitude 123 degrees Quileute.. Between 48 degrees N. latitude (Sand Point) and 47 degrees N. latitude (Queets River), and east of longitude 125 degrees Hoh... Between 47 degrees N. latitude (Quillayute River) and 47 degrees N. latitude (Quinault River), and east of longitude 125 degrees Quinault.. Between 47 degrees N. latitude (Destruction Island) and 46 degrees N. latitude (Point Chehalis), and east of longitude 125 degrees (e) Quota. Of the total allowable catch in IPHC Regulatory Area 2A, 50,000 pounds (23 metric tons) is suballocated to the U.S. treaty Indian tribes regardless of where the fish are taken by those tribes in Regulatory Area 2A. All fish taken by members of U.S. treaty Indian tribes in Subarea 2A during the season described in paragraph (f)(1) of this section will count toward this quota whether or not the fish are sold. (f) Season. (1) For members of U.S. treaty Indian tribes, the commercial fishing season in Subarea 2A-1 shall commence on April 30 and terminate when the quota for the tribes specified in paragraph (e) of this section is reached, or on October 31, whichever is earlier. (2) For members of the U.S. treaty Indian tribes, a subsistence and ceremonial fishing season in Subarea 2A-1 shall commence on April 30, 1986 and 1987, and terminate on December 31, 1986, and October 31, In this subsistence and ceremonial fishery, treaty Indians may take and retain, but not sell, up to two halibut per day caught on hook-and-line gear. (g) Identification of U.S. treaty Indian. Any member of a U.S. treaty Indian tribe as defined in paragraph (c) of this section who is fishing under this part shall have in his or her possession a valid treaty Indian identification card issued pursuant to 25 CFR Part 249, Subpart A. This identification is not a substitute for the commercial halibut vessel license required of all commercial halibut fishermen by the IPHC. [FR Doc Filed ; 5:11 pm] APPELLANTS' ADDENDUM - 3

76 Case: /27/2014 ID: DktEntry: 19-1 Page: 76 of FR RULES and REGULATIONS DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 301 [Docket No ] Pacific Halibut Fisheries Monday, May 4, 1987 *16268 AGENCY: National Marine Fisheries Service (NMFS), NOAA, Commerce. * * * United States treaty Indian tribes. (a) Purpose. The purpose of this section is to implement the recommendations of the International Pacific Halibut Commission (IPHC) to govern fishing for halibut by eleven United States treaty Indian tribes in certain marine fishing areas off the coast of Washington, in the Strait of Juan de Fuca, and in Puget Sound. (b) Relation to other laws. Except as provided in this section, all regulations of the IPHC in this part apply to halibut fishing by members of United States treaty Indian tribes. (c) Definitions. For purposes of this Part 301, United States treaty Indian tribes means the Makah, Quileute, Hoh, and Quinault tribes located along the north Washington coast, the Lower Elwha Klallam, Jamestown Klallam, and Port Gamble Klallam located along the Strait of Juan de Fuca, and the Lummi, Swinomish, Tulalip, and Skokomish Tribes located along Puget Sound in the State of Washington. (d) Area. Within IPHC Regulatory Area 2A, Subarea 2A-1 includes waters under United States jurisdiction off the coast of Washington from the U.S.-Canada border south to N. latitude [Point Chehalis] along the Pacific coast and east through the Strait of Juan de Fuca to include the waters of Puget Sound. Within Subarea 2A-1, boundaries of a tribe s fishery may be revised as ordered by a Federal court. APPELLANTS' ADDENDUM - 4

77 Case: /27/2014 ID: DktEntry: 19-1 Page: 77 of 90 Tribe Makah Quileute Boundaries North of 48 degrees N. latitude (Norweigan Memorial), west of longitude 123 degrees W, and east of 125 degrees W. longitude. Between 48 degrees N. latitude (Sand Point) and 47 degrees N. latitude (Queets River), and east of 125 degrees W. longitude Hoh Between 47 degrees N. latitude (Quillayute River) and 47 degrees N. latitude (Quinault River), and east of 125 degrees W. longitude. Quinault Between 47 degrees N. latitude (Destruction Island) and 46 degrees N. latitude (Point Chehalis), and east of 125 degrees W. longitude. L. Elwha Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), and particularly at 459 F. Supp and 1066 and 626 F. Supp. 1443, to be places at which the Lower Elwha Tribe may take fish under rights secured by treaties with the United States. Jamestown Port Gamble Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), and particularly at 626 F. Supp. 1486, and to be places at which the Jamestown Tribe may take fish under rights secured by treaties with the United States. Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), and particularly at 626 F. Supp. 1442, to be places at which the Port Gamble Tribe may take fish under rights secured by treaties with the United States. APPELLANTS' ADDENDUM - 5

78 Case: /27/2014 ID: DktEntry: 19-1 Page: 78 of 90 Lummi Swinomish Tulalip Skokomish Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), and particularly at 384 F. Supp. 360, to be places at which the Lummi Tribe may take fish under rights secured by treaties with the United States. Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), and particularly at 459 F. Supp. 1049, to be places at which the Swinomish Tribe may take fish under rights secured by treaties with the United States. Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. (W.D. Wash. 1974), and particularly at 626 F. Supp to be places at which the Tulalip Tribe may take fish under rights secured by treaties with the United States. Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), and particularly at 384 F. Supp. 377, to be places at which the Skokomish Tribe may take fish under rights secured by treaties with the United States. (e) Quota.Of the total allowable catch in IPHC Regulatory Area 2A, 100,000 pounds (46 metric tons) is suballocated to the U.S. treaty Indian tribes regardless of where the fish are taken by those tribes in Regulatory Area 2A. If it *16273 is projected that the treaty tribal suballocation of 100,000 pounds will be taken prior to October 31, then an additional amount of fish is available to the tribes sufficient for them to reach the October 31, 1987, closing date, but in no event will this additional amount exceed the 50,000 pounds (23 metric tons) made available for this purpose by the IPHC. All fish taken by members of U.S. treaty Indian tribes in Subarea 2A during the season described in paragraph (f)(1) of this section will count toward this quota whether or not the fish are sold. (f) Seasons. (1) For members of U.S. treaty Indian tribes, the commercial fishing APPELLANTS' ADDENDUM - 6

79 Case: /27/2014 ID: DktEntry: 19-1 Page: 79 of 90 season in Subarea 2A-1 will commence on April 1 and terminate on October 31 or when a total tribal harvest of 100,000 pounds is reached as specified in paragraph (e) of this section, whichever occurs first. The IPHC will monitor catch and effort data in the treaty Indian fishery during the season. If at any time during the season it is projected that the treaty Indian harvest will reach 100,000 pounds prior to October 31, then an additional amount of halibut will be made available to the tribes sufficient to allow them to continue fishing until October 31, but in no event will this additional amount exceed 50,000 pounds. If the additional 50,000 pounds is projected to be taken, the Secretary will, by publishing a notice in the Federal Register, close the treaty Indian halibut fishery as of the date 50,000 pounds is projected to be taken. Following closure of the treaty Indian commercial halibut fishing season, no person authorized to fish for halibut by a United States treaty Indian tribe may fish for halibut except as authorized by paragraph (f)(2) of this section. (2) For members of the U.S. treaty Indian tribes, a subsistence and ceremonial fishing season in Subarea 2A-1 will commence on April 1, and terminate on December 31. After the treaty Indian halibut quota is taken or after October 31, 1987, whichever occurs first, treaty Indians may take and retain, but not sell, up to two halibut per day caught on hook and line gear. (g) Size limit. All halibut taken and retained by treaty Indians during the commercial fishing season specified in paragraph (f)(1) of this section must, with the head on, be a minimum of 32 inches (81.3 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with the mouth closed, to the extreme end of the middle of the tail, or, with the head removed, be a minimum of 24 inches (61.0 cm) as measured from the base of the pectoral fin at its most anterior point to the extreme end of the middle of the tail, as illustrated in the schedule. (h) Identification of U.S. treaty Indian. Any member of a U.S. treaty Indian tribe as defined in paragraph (c) of this section who is fishing under this part must have in his or her possession a valid treaty Indian identification card issued under 25 CFR Part 249, Subpart A and must not fish except from a vessel properly identified and marked with the treaty Indian vessel identification required under 25 CFR Part 249, Subpart A. APPELLANTS' ADDENDUM - 7

80 Case: /27/2014 ID: DktEntry: 19-1 Page: 80 of FR RULES and REGULATIONS DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 663 [Docket No ; I.D A] RIN 0648-AH84 Pacific Coast Groundfish Fishery; Framework for Treaty Tribe Harvest of Pacific Groundfish and 1996 Makah Whiting Allocation Thursday, June 6, 1996 *28786 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS is establishing a framework to implement the Washington coastal treaty Indian tribes rights to harvest Pacific groundfish. NMFS also announces the allocation of 15,000 metric tons (mt) of Pacific whiting to the Makah Indian Tribe (Makah) for 1996 only, under the provisions of the regulatory framework. EFFECTIVE DATE: May 31, ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) may be obtained from the Director, Northwest Region, NMFS, 7600 Sand Point Way NE., BIN C15700, Seattle, WA FOR FURTHER INFORMATION CONTACT: William L. Robinson at SUPPLEMENTARY INFORMATION: NMFS is issuing this rule under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP) and the Magnuson Fishery Conservation and Management Act (Magnuson Act). It amends the FMP s implementing regulations to establish a clear procedure to accommodate the Washington coastal treaty Indian tribes rights to harvest Pacific groundfish. At the same time, NMFS is modifying the groundfish regulations to consolidate regulations on treaty Indian fishing into one section and to provide for the treaty trawl harvest of midwater groundfish species. Under the provisions of this rule, NMFS announces the allocation of 15,000 mt of Pacific whiting to the APPELLANTS' ADDENDUM - 8

81 Case: /27/2014 ID: DktEntry: 19-1 Page: 81 of 90 Makah for For purposes of this rule, Washington coastal treaty Indian tribes means the Hoh, Makah, and Quileute Indian Tribes and the Quinault Indian Nation. This rule is implemented under authority of section 305(d) of the Magnuson Act, which gives NMFS, *28787 acting on behalf of the Secretary of Commerce (Secretary), responsibility to carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act. With this rule, NMFS will ensure that the Pacific coast groundfish FMP is implemented in a manner consistent with treaty rights of the four Washington coastal treaty tribes to fish in their usual and accustomed grounds and stations in common with non-tribal citizens. United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974). NMFS published a proposed rule at (61 FR 10303, March 13, 1996), requesting comments through April 12, NMFS received 17 comments on the proposed rule, which are responded to below. The background and rationale for this rule appear in the proposed rule and the EA/RIR/IRFA prepared for this action (see ADDRESSES). * * * Response to Comments NMFS received 17 comments on the proposed rule from: The States of Washington and Oregon; three Washington coastal treaty tribes; and members of the non-indian fishing and processing community who currently fully utilize the U.S. harvest guideline. Many comments addressed two major issues: (1) Whether the Washington coastal treaty tribes have a treaty entitlement to Pacific groundfish, particularly Pacific whiting; and (2) the appropriate quantification of the treaty right. NMFS received other comments regarding the impacts on non-indian fishers, processors, coastal communities, the whiting resource, and bycatch, particularly chinook salmon listed under the Endangered Species Act (ESA); NMFS description of tribal U&A; the implementation process; and the framework. Treaty Entitlement Many commenters asserted that the tribes do not have a treaty right to whiting, because they did not harvest whiting at the time the Stevens treaties were signed. NMFS disagrees with this statement. The treaties themselves refer to the right of taking fish, without any species limitation. As explained in the proposed rule, in the shellfish subproceeding (89-3) in United States v. Washington, 873 F. Supp (W.D. Wash., 1994) (appeals pending), the court found that the right to take APPELLANTS' ADDENDUM - 9

82 Case: /27/2014 ID: DktEntry: 19-1 Page: 82 of 90 fish that was reserved in the treaties must be read to cover fish without any species limitation. The court found: The fact that some species were not taken before treaty time either because they were inaccessible or the Indians chose not to take them does not mean that their right to take such fish was limited * * * Because the right of taking fish must be read as a reservation of the Indians pre-existing rights, and because the right to take any species, without limit, pre-existed the Stevens Treaties, the Court must read the right of taking fish without any species limitation. [emphasis in original] Id. at 1430 Commenters argue that this case is on appeal and dealt with shellfish, not groundfish; therefore it is inappropriate for this ruling to be applied to whiting. The decision has not been stayed pending appeal. As such, NMFS has no choice but to apply the law consistent with interpretations by the District Court. In addition, the Makah have submitted evidence supporting the conclusion that the Makah did harvest whiting at treaty time. Dr. Barbara Lane, an anthropologist and expert witness in United States v. Washington, states that a lack of documentation in the published literature is of no help in assessing whether or not the Makah fished M. productus at treaty times. She goes on to say: The best that can be done is to interpolate from archeological evidence, the available ethnographic record, linguistic knowledge, oral history, and ethnology. Based upon these sources, which comprise the best available evidence, it is my opinion that if M. productus was accessible to Makah fishermen at treaty time, this species would have been utilized. Letter from Barbara Lane to Marc D. Slonim (legal counsel for the Makah tribe), February 29, Dr. Gary Wessen (Wessen & Associates, Archeological Services), in comments submitted by the Makah, reviewed some of the available archeological evidence and concluded: Use of this fish [M. productus] probably extends over much of the region and has been occurring for a considerable period of time. Within the context of this regional pattern, the case for Makah use of hake/whiting is quite good. At least one site in Makah territory contains the bones of this fish, as do other sites which represent close relatives of the Makah. APPELLANTS' ADDENDUM - 10

83 Case: /27/2014 ID: DktEntry: 19-1 Page: 83 of 90 Letter from Gary C. Wessen, Ph.D. to Marc D. Slonim, November 24, Several commenters argued that the Makah must follow the procedure set out by Judge Boldt in one of his early decisions at 459 F. Supp. 1020, , where the court said prior to exercising off-reservation fishing rights to non-anadromous fish and shellfish, a tribe shall present prima facie evidence of such right, pending final determination of tribal treaty-right entitlement to non-anadromous fish and shellfish. NMFS believes that this does not apply to the whiting fishery. First, as explained above, the United States v. Washington court has already ruled that tribes have treaty rights to all fish available in their U&A; thus the treaty-right entitlement has been determined. Second, in the halibut subproceeding in United States v. Washington, when Judge Rothstein determined that the tribes have treaty rights to halibut, she did not order NMFS to start accommodating the treaty right because she had previously judicially determined they had a right. Rather, she found that the Makah treaty right had been violated in past regulatory schemes. The necessary implication of this finding is that the treaty right should have been accommodated prior to her judicial determination. Makah Indian Tribe v. Brown, No. C R, and United States v. Washington, Civil No Phase I, Subproceeding No (W.D. Wash., Order on Five Motions Relating to treaty Halibut Fishing, Dec. 29, 1993). Third, the judicial procedure was set up in the early days of the treaty fishing rights litigation, in relation to fishing within the jurisdiction of the State of Washington (which did not recognize the fishing rights in question) in order to ensure an orderly implementation of new fisheries. The whiting fishery is primarily under the jurisdiction of NMFS, which recognizes the treaty right and which is working with the tribe to implement an orderly fishery. Thus, the United States v. Washington procedure is not required for Federally regulated fisheries to the extent that there is no disagreement between the tribes and the Federal government. The administrative procedures set up by this rule should ensure the orderly implementation of new treaty fisheries without the need to resort to the courts except in unusual circumstances. Four commenters agreed with NMFS that the Makah have a treaty right to harvest whiting. * * * Pacific Coast treaty Indian fisheries. (a) Pacific Coast treaty Indian tribes have treaty rights to harvest groundfish in their usual and accustomed fishing areas in U.S. waters. APPELLANTS' ADDENDUM - 11

84 Case: /27/2014 ID: DktEntry: 19-1 Page: 84 of 90 (b) For the purposes of this part, Pacific Coast treaty Indian tribes means the Hoh, Makah, and Quileute Indian Tribes and the Quinault Indian Nation. (c) The Pacific Coast treaty Indian tribes usual and accustomed fishing areas within the fishery management area (FMA) are set out below in paragraphs (c)(1) through (c)(4) of this section. Boundaries of a tribe s fishing area may be revised as ordered by a Federal court. (1) Makah That portion of the FMA north of 48degrees02 15 N. lat. (Norwegian Memorial) and east of 125degrees44 00 W. long. (2) Quileute That portion of the FMA between 48degrees07 36 N. lat. (Sand Point) and 47degrees31 42 N. lat.(queets River) and east of 125degrees44 00 W. long. (3) Hoh That portion of the FMA between 47degrees54 18 N. lat. (Quillayute River) and 47degrees21 00 N. lat. (Quinault River) and east of 125degrees44 00 W. long. (4) Quinault That portion of the FMA between 47degrees40 06 N. lat. (Destruction Island) and 46degrees53 18 N. lat. (Point Chehalis) and east of 125degrees44 00 W. long. (d) Procedures. The rights referred to in paragraph (a) of this section will be implemented by the Secretary, after consideration of the tribal request, the recommendation of the Council, and the comments of the public. The rights will be implemented either through an allocation of fish that will be managed by the tribes, or through regulations in this section that will apply specifically to the tribal fisheries. An allocation or a regulation specific to the tribes shall be initiated by a written request from a Pacific Coast treaty Indian tribe to the Regional Director, prior to the first of the Council s two annual groundfish meetings. The Secretary generally will announce the annual tribal allocation at the same time as the annual specifications developed under section II.H. of the Appendix to this part. The Secretary recognizes the sovereign status and co-manager role of Indian tribes over shared Federal and tribal fishery resources. Accordingly, the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus. (e) Identification. A valid treaty Indian identification card issued pursuant to 25 CFR part 249, subpart A, is prima facie evidence that the holder is a member of the APPELLANTS' ADDENDUM - 12

85 Case: /27/2014 ID: DktEntry: 19-1 Page: 85 of 90 Pacific Coast treaty Indian tribe named on the card. (f) A limited entry permit under subpart C is not required for participation in a tribal fishery described in paragraph (d) of this section. (g) Fishing under this section by a member of a Pacific Coast treaty Indian tribe within their usual and accustomed fishing area is not subject to the provisions of other sections of this part. (h) Any member of a Pacific Coast treaty Indian tribe must comply with this section, and with any applicable tribal law and regulation, when participating in a tribal groundfish fishery described in paragraph (d) of this section. (i) Fishing by a member of a Pacific Coast treaty Indian tribe outside the applicable Indian tribe s usual and accustomed fishing area, or for a species of groundfish not covered by an allocation or regulation under this section, is subject to the regulations in the other sections of this part. (j) Black rockfish. Harvest guidelines for commercial harvests of black rockfish by members of the Pacific Coast Indian tribes using hook and line gear will be established annually for the areas between the U.S.-Canadian border and Cape Alava (48degrees09 30 N. lat.) and between Destruction Island (47degrees40 00 N. lat.) and Leadbetter Point (46degrees38 10 N. lat.), in accordance with the procedures for implementing annual specifications in section II.H of the Appendix to this part. Pacific Coast treaty Indians fishing for black rockfish in these areas under these harvest guidelines are subject to the provisions in this section, and not to the restrictions in other sections of this part. (k) Groundfish without a tribal allocation. Makah tribal members may use midwater trawl gear to take and retain groundfish for which there is no tribal allocation and will be subject to the trip landing and frequency and size *28796 limits applicable to the limited entry fishery. 6. The Appendix to this part is amended by revising the first paragraph in section II.H. to read as follows: APPELLANTS' ADDENDUM - 13

86 Case: /27/2014 ID: DktEntry: 19-1 Page: 86 of 90 * * * APPELLANTS' ADDENDUM - 14

87 Case: /27/2014 ID: DktEntry: 19-1 Page: 87 of 90 APPELLANTS' ADDENDUM - 15

88 Case: /27/2014 ID: DktEntry: 19-1 Page: 88 of 90 = ~~i}ed. =-TAT~S oe:p_arime:n~ 0~ ~I:?~MERCE...,,.a~H;;;.nQ:! Y~E!!!!n:!c end A'Cmoepner!c AC!m!n!etr:;:tlon ~~:~~~to~: 0 ~~~c~~e_:~~~~-~ COUNSEL Mr- John D- Leshy ~ EscrJ.ire Solicitor Department of the Interior Washington, D.c OCT GCNW, S :\TTLE. \!'~'A Dear Mr. Leshy: ~ In res.pon_se_ to questions from the Pacific Fishery Mane_gernent counc1.l ra1sed in connection with its Pacific Coast Groundfish Fishery Management Plan, the NOAA Office of General Counsel for the Northwest Region and the Northwest Region of the National Marine Fisheries Service have reviewed the potential treaty Indian fishing rights to groundfish in the usual and accustomed fishing areas of the Makah, Hoh, Quileute, and Quinault tribes (portions of the marine waters under U.S. jurisdiction north of 46 53'18" North latitude} ~ The issue has also been discussed with representatives of the Department of Justice, the-department of the Interior, and the Assist~nt U.s_: A~~orney ~~o _rep~esents ~J:e_ Un~te?- State~_ in the,m,rfin :-;r;:a1:es v. w;lsn1ngtcn J..i.ti.gatl.-on to Which the four tribes are ( parties. As set forth in more detail below; I have concluded that a. federal court. wou1d determine that the coastal tribes have a right to fi~h for groundfish rese~1ed by their treaties, and that the quantification af that right is 50% of the har.restable surplus of groundfish in the usual and accustomed fishino areas~ The tribes' usual and accustomed ocean fishinc areas are-the same as thev are for salmon and Pacific halibut. Mv conclusions arp hased o~ the interaqencv - - discussions anri nn rn1i;as 1n TI.R- v w;-c::::-hi~n~~f.--~~ -M<=tk~h ~ ~~~ v. Brown, and the U.S. positions taken in Subproceeding 89-3 (the shellfish subproceeding) in U.S. v. Washington. The treaty fishing r~gnts to salmon of the Northwest treaty ~na~an tribes have been recognized, and numerous management principles set out,-in United States v. Washington. 384 F. Supp. 312 (W.D. Wash. 1974}, aff'd 520 F.2d 676 {9th Cir. 1975), cert. denied 423 U.s (1976}, aff'd sub nom. Washington v. Passenger Vessel Associati.an, 443 u.s. 658 {1979). See also United States v. ~ ~ashington {Compilation of Najo:t~ Post-Trial Substantive Order~ through June 30; :1.978), 459 F. Supp_ 1020 (_1978). The treaties bet.ween the Unit-ed StateS a11.d the tribes of Western Washingto_,.l t:p:=~t were interpreted in these proceedings contain nearly identical language reserving to the tribes the ''right of takinq fish, at -all usual and accustomed qrounds and stations. _in -e.ommon.with all citizens. " See. -e.g., the Treatv of Medicine Creek, 10 Stat. 1132, Article III. l'luun DECLP..P... i.~tion ATTAC~J1:E1-IT A Page 2 ER 597 APPELLANTS' ADDENDUM - 16

89 Case: /27/2014 ID: DktEntry: 19-1 Page: 89 of 90 = e 2 The rights rese~jed in the treaties have b~e; interpreted to include five species_ bf -salmon: steelhead trout, herring 1 a:nd Pacific halibut. No distinctions have been applied based on biological differences among the :Species. Particularly in light of Judge Rothstein's ruling in Makah v. _Brown (Order on Five Mot: ions Relating to Treo_ty Halibut Fishing: Decernber 29; ~993) acknowledging the tribes' treaty right to Pacific halibut, we feel certain that the treaty right would also be interpreted to apply to other species of gl:'oundfish. This is so regardless of whether the tribes submit evidence to prove that specific species within the groundfish complex were_ actually harvested by tribal members in the usual and accustomed fishinq cp:-ounds at and 'before treatv times. See, U~S. v. Washington, subproceeding 89-3, Order Denying- Summary Judgment l.~: Certain Species and Deep-Water HarVest~ at 4-5 (January 6, 1994j ~ i'jua..-1\. also believes that the most reasonable quantification of this right would be that already applied by the court to salmon! herring, and Pacific nalibut. The most closely analoqous fishery is the halibut fisher. Halibut itself ;Ls a species of~ groundfish, and differs from the other spec~es only in that it 1s managed by the_ International Pacific Halibut Commission under the U,. S,. /Canada Halibut Convention (with the Secretar.[ of commerce responsible for allocations under the Northe~ Pacific Halibut Act), s.~ather than by ( the Secretary of Commerce under the Magnuson Fishery Conservation and Management Act; as are the other species of groundfish. Per halibut: the court ound that ''the Secr-etary w.ust accord treaty fishers the opportunity to take SO% of the har;estable surplus of halibut in their usuai and accustomed fishing grounds, and the harvestable surplus must be determined according to the conservation necessity principle. [citations omitted]" M~k~h v, ~rown, Order on Five Motions Relating to Treaty Halibut Fishing (uecember 29, l993) at 6. We also believe the tribal usual and accustomed fishinq areas for groundfish are the same as they are for salmon and halibut. The boundaries for the tribesr usual and accustomed fishing areas have not varied by species. u.s. v. Washington, Sl:J.bproceeding 89-3, Order Denying Summary Judgment re: Certain Species and Deep Water Har;est! at 6 (JanuarJ 6, 1994),. In add~t~on/ the areas have already been reco~nized for a long period of time under federal management measures applicable to the salmon and halibut fisheries. see, e.g.: 59 Fed. Reg , May 4, ~994 (salmcni and 59 Fed. Reg ; May 2; ~994 {halibut) The above cor.clusions are mare thoroughly e:-:plained J..n the enclosed portions of the Plaintiffg' Joint Trial Brief and Plaintiffs' Post-Trial Brief in Suhproceeding 8?-3 in u.s. v. Washington, which sets forth the Federal --9-0vernmer;::.' s po-s-it-ion- on -these issues. ' MOON DECLA.. RA'I'ION ATTACB11ENT A P?-ge ER 598 APPELLANTS' ADDENDUM - 17