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

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1 Case: /18/2014 ID: DktEntry: 33-1 Page: 1 of 73 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 and 2-70-cv RSM The Honorable Ricardo S. Martinez United States District Court Judge BRIEF OF APPELLEE MAKAH INDIAN TRIBE RESPONDING TO BRIEFS BY QUILEUTE TRIBE, QUINAULT NATION AND HOH TRIBE Marc D. Slonim, WSBA No Joshua Osborne-Klein, WSBA No ZIONTZ CHESTNUT 2101 Fourth Avenue, Suite 1230 Seattle, WA (206) Attorneys for the Makah Indian Tribe

2 Case: /18/2014 ID: DktEntry: 33-1 Page: 2 of 73 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned counsel for Appellee Makah Indian Tribe certifies that the Makah Indian Tribe is a federally recognized Indian tribe, that it does not have any parent corporation, and that no publicly-held corporation owns stock in the Makah Indian Tribe. i

3 Case: /18/2014 ID: DktEntry: 33-1 Page: 3 of 73 TABLE OF CONTENTS INTRODUCTION... 1 JURISDICTIONAL STATEMENT District Court Jurisdiction Appellate Jurisdiction ISSUES PRESENTED FOR REVIEW... 5 STATEMENT OF THE CASE Quileute, Quinault and Hoh s Complaints in Intervention Final Decision I: the Case-Area Limitation and U&A Determinations The Case Area after Final Decision I Quileute, Quinault and Hoh s Invocation of the District Court s Jurisdiction in Pacific Ocean Waters outside the Original Case Area Federal Regulations Identifying Quileute, Quinault and Hoh Ocean Fishing Places The Midwater Trawlers Litigation Makah s Request for Determination Procedural History and Rulings Presented for Review ii

4 Case: /18/2014 ID: DktEntry: 33-1 Page: 4 of 73 SUMMARY OF ARGUMENT...32 ARGUMENT This Court Lacks Jurisdiction Quileute, Quinault and Hoh Waived Their Immunity a. Quileute, Quinault and Hoh s Waivers Extend to Inter-tribal Disputes b. Quileute, Quinault and Hoh s Waivers Extend to Waters outside the Original Case Area Federal Regulations Do Not Deprive the District Court of Subject Matter Jurisdiction Hoh s Claim that the District Court Erred in Denying Intervention Lacks Merit CONCLUSION...62 iii

5 Case: /18/2014 ID: DktEntry: 33-1 Page: 5 of 73 TABLE OF AUTHORITIES Cases Behrens v. Pelletier, 516 U.S. 299 (1996)... 37, 38 Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085 (9 th Cir. 2007)...37 Churchill County v. Babbitt, 150 F.3d 1072 (9 th Cir.), amended on denial of rehearing, 158 F.3d 491 (9 th Cir. 1998), abrogated in other respects, Wilderness Soc y v. Forest Service, 630 F.3d 1171 (9 th Cir. 2011)...42 Classic Concepts v. Linen Source, 716 F.3d 1282 (9 th Cir. 2013)...37 Cunningham v. Gates, 229 F.3d 1271 (9th Cir. 2000)...43 Greene v. United States, 996 F.2d 973 (9 th Cir. 1993)...23 Harmston v. San Francisco, 627 F.3d 1273 (9 th Cir. 2010)...37 In re White, 139 F.3d 1268 (9 th Cir. 1998)... 44, 52 Knox v. Sw. Airlines, 124 F.3d 1103 (9 th Cir. 1997)...38 Makah v. Mosbacher, No. C (W.D. Wash.)...14 Makah v. Verity, 910 F.2d 555 (9 th Cir. 1990)...59 McClendon v. U.S., 885 F.2d 627 (9 th Cir. 1989)... 44, 51 Meredith v. Oregon, 321 F.3d 807 (9 th Cir. 2003)...43 Midwater Trawlers Coop v. Dep t of Commerce, 282 F.3d 710 (9 th Cir. 2002)... 24, 25 iv

6 Case: /18/2014 ID: DktEntry: 33-1 Page: 6 of 73 Midwater Trawlers Coop. v. Dep t of Commerce, 139 F. Supp. 2d 1136 (W.D. Wash. 2000), aff d in part, rev d in part, 282 F.3d 710 (9 th Cir. 2002)... 20, 21 Midwater Trawlers Coop. v. Dep t of Commerce, 393 F.3d 994 (9 th Cir. 2004)...25 Molloy v. Wilson, 878 F.2d 313 (9 th Cir. 1989)...41 Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9 th Cir. 1998)...4, 48 Oneida Tribe v. Village of Hobart, 500 F. Supp. 2d 1143 (E.D. Wis. 2007)...44 Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416 (9 th Cir. 1989)...44 Pena v. Meeker, 298 Fed. Appx. 562 (9 th Cir. 2008)...37 Puget Sound Gillnetters Ass n v. U.S. District Court, 573 F.2d 1123 (9 th Cir. 1978)...9, 11 Rupp v. Omaha Indian Tribe, 45 F.3d 1241 (8 th Cir. 1995)... 44, 52 SEC v. Capital Consultants, 453 F.3d 1166 (9 th Cir. 2006)... 36, 37, 42 Starbound LLC v. Guitierrez, No. C JCC, 2008 WL (W.D. Wash. Apr. 15, 2008)... 25, 26 Stringfellow v. Concerned Neighbors, 480 U.S. 370 (1987)...42 Swint v. Chambers County Comm n, 514 U.S. 35 (1995)...43 U.S. v. Layton, 645 F.2d 681 (9 th Cir. 1981)...42 U.S. v. Lummi Indian Tribe, 235 F.3d 443 (9 th Cir. 2000)...4, 48 U.S. v. Muckleshoot Tribe, 235 F.3d 429 (9 th Cir. 2000)...48 U.S. v. Oregon, 657 F.2d 1009 (9 th Cir. 1981)... 45, 51, 52 v

7 Case: /18/2014 ID: DktEntry: 33-1 Page: 7 of 73 U.S. v. Washington, 143 F. Supp. 2d 1218 (W.D. Wash. 2001)...12 U.S. v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974)... passim U.S. v. Washington, 459 F. Supp (W.D. Wash 1978)... 10, 11, 58 U.S. v. Washington, 520 F.2d 676 (9 th Cir. 1975)...3, 9 U.S. v. Washington, 573 F.3d 701 (9 th Cir. 2009)...60 U.S. v. Washington, 626 F. Supp (W.D. Wash. 1985)... 11, 29, 45 U.S. v. Washington, 730 F.2d 1314 (9 th Cir. 1984)...11 U.S. v. Washington, 873 F. Supp (W.D. Wash. 1994), aff d in part, rev d in part, 157 F.3d 630 (9 th Cir. 1998)... 11, 12 Upper Skagit Tribe v. Washington, 590 F.3d 1020 (9 th Cir. 2010)... 48, 60 Washington v. Washington State Commercial Passenger Fishing Vessel Ass n, 443 U.S. 658 (1979)... 9 Statutes 28 U.S.C U.S.C U.S.C , 4 28 U.S.C , 4 Regulations 51 Fed. Reg (May 2, 1986) Fed. Reg (May 6, 1987)...18 vi

8 Case: /18/2014 ID: DktEntry: 33-1 Page: 8 of Fed. Reg (June 6, 1996)... 17, 19, 23 Treaties Treaty of Olympia, 12 Stat vii

9 Case: /18/2014 ID: DktEntry: 33-1 Page: 9 of 73 INTRODUCTION After the Quileute Tribe and the Quinault Nation threatened to preempt the Makah Tribe s Pacific whiting fishery, Makah initiated a subproceeding in U.S. v. Washington, the northwest Indian treaty fishing rights litigation, seeking a determination of Quileute and Quinault s Pacific Ocean usual and accustomed fishing places (U&A). Quileute, Quinault, and the Hoh Tribe seek interlocutory review of three district court orders in the case. They assert that their sovereign immunity bars Makah s request, federal regulations deprive the district court of jurisdiction to determine their ocean U&A, and Hoh should have been permitted to intervene in the subproceeding. This Court should dismiss the appeals for lack of jurisdiction. If the Court finds it has jurisdiction, it should affirm. Quileute and Quinault s immunity is no bar to Makah s claims. They intervened in this case seeking an adjudication of their U&A without geographic limitation, thereby waiving their immunity for purposes of such an adjudication. Although the district court subsequently limited the case area to waters within the State of Washington, this limitation was in effect for only a few years; for more than 30 years, the district court has exercised jurisdiction over treaty fishing rights disputes (including inter-tribal disputes and U&A determinations) in ocean waters outside the State. Quileute and Quinault themselves have repeatedly invoked the 1

10 Case: /18/2014 ID: DktEntry: 33-1 Page: 10 of 73 district court s jurisdiction to protect their treaty rights in ocean waters outside the State, thereby waiving their immunity to determine whether (and where) they have such rights in the first place. Moreover, long after the district court expanded the case area to include ocean waters, Quileute and Quinault represented to the district court that their waivers extended to inter-tribal disputes and to all issues (including U&A determinations) validly within the scope of the case. And, they represented to this Court that the district court has jurisdiction to determine their ocean U&A, and that they have waived their immunity for purposes of such a determination. Under these circumstances, Quileute and Quinault s plea for an unprecedented immunity enjoyed by no other tribe in this case lacks merit. Hoh s immunity is also no bar to Makah s claims because: (1) Makah seeks no relief against Hoh; and (2) Hoh too has waived its immunity. The federal regulations do not bar Makah s claims because they defer to and do not purport to displace the district court s jurisdiction to determine ocean U&A, just as Quileute and Quinault previously argued to this Court. Hoh s motion to intervene was properly denied because Hoh is already a party to this case and entitled to participate fully in this subproceeding. 2

11 Case: /18/2014 ID: DktEntry: 33-1 Page: 11 of 73 JURISDICTIONAL STATEMENT 1. District Court Jurisdiction. In 1971, Quileute, Quinault and Hoh intervened in this case seeking an adjudication that they possessed a right of taking fish within their U&A pursuant to the Treaty of Olympia, 12 Stat Makah Supplemental Excerpts of Record (MSER) 373, 381, 420. Because their complaints arose under a treat[y] of the United States they were within the district court s subject matter jurisdiction under 28 U.S.C and See U.S. v. Washington, 384 F. Supp. 312, 399 (W.D. Wash. 1974), substantially aff d and remanded, 520 F.2d 676 (9 th Cir. 1975). The district court (per Judge Boldt) entered a declaratory judgment, decree and injunction in See id. at , The court retained continuing jurisdiction to take evidence, to make rulings and to issue such orders as may be just and proper upon the facts and law and in implementation of [its] decree. Id. at 408. It authorized any party to invoke the continuing jurisdiction of [the] court in order to determine: (a) whether or not the actions, intended or effected by any party are in conformity with Final Decision # I or this injunction; [or] (f) the location of any of a tribe s usual and accustomed fishing grounds and stations not specifically determined by Final Decision # I. Id. at 419. The court 3

12 Case: /18/2014 ID: DktEntry: 33-1 Page: 12 of 73 modified the procedures for initiating a subproceeding in 1993, but retained these provisions. MSER ( 25(a)(1), (6)). Paragraph 25(a) (now 25(a)(1)) has been used to resolve disputes regarding the meaning of the court s previous U&A findings; in such proceedings the evidence has been limited, for the most part, to the record before the court when it entered its previous findings. See, e.g., U.S. v. Lummi Indian Tribe, 235 F.3d 443, 450 (9 th Cir. 2000). In contrast, paragraph 25(f) (now 25(a)(6)) has been invoked to obtain new U&A determinations; in such proceedings, the parties may submit new evidence bearing on the matter. See, e.g., Muckleshoot Tribe v. Lummi Tribe, 141 F.3d 1355, 1360 (9 th Cir. 1998). Makah invoked these provisions, requesting a determination of Quileute and Quinault s U&A in the Pacific Ocean. Quileute and Quinault Excerpts of Record (ER) 569, 578. Because the request arises under a treaty of the United States it, like Quileute and Quinault s original complaints, is within the district court s subject matter jurisdiction under 28 U.S.C and Appellate Jurisdiction. Quileute, Quinault and Hoh appeal orders entered on July 8 and September 3, ER 296. In those orders, the district court: (1) declined to reconsider an earlier ruling denying Quileute and Quinault s motion to dismiss on sovereign immunity grounds because the request for reconsideration was untimely; and (2) 4

13 Case: /18/2014 ID: DktEntry: 33-1 Page: 13 of 73 rejected Quinault s argument that federal regulations deprived the court of jurisdiction to determine the location of its U&A. ER 30, 31-32; ER & n.1. Hoh also appeals an August 8, 2012, order denying its motion to intervene in the subproceeding. Hoh Excerpts of Record (HER) Although the district court s orders did not end the litigation, Quileute, Quinault and Hoh contend that the court s refusal to reconsider its prior sovereign immunity ruling is an appealable collateral order (but make no claim that the order regarding the effect of the federal fishing regulations is a collateral order, and articulate no other basis for appellate jurisdiction over it). Hoh also contends the order denying intervention is a collateral order or subject to this Court s pendent jurisdiction. For the reasons below, these claims lack merit and this Court lacks jurisdiction over these appeals. ISSUES PRESENTED FOR REVIEW 1. Does this Court have jurisdiction over district court orders: (a) declining to reconsider a prior sovereign immunity ruling on the grounds that the request was untimely; (b) holding that federal regulations do not deprive the court of subject matter jurisdiction; or (c) denying an existing party s motion to intervene? 2. Did Quileute and Quinault (and Hoh) waive their immunity for purposes of determining their ocean U&A by: (a) intervening in this case and expressly requesting an adjudication of their treaty fishing rights without geographic 5

14 Case: /18/2014 ID: DktEntry: 33-1 Page: 14 of 73 limitation; (b) representing to the district court that their waivers of immunity extended to inter-tribal disputes regarding all issues validly within the scope of the case, at a time when there was no geographic limitation on the case area; (c) repeatedly seeking relief with respect to their treaty fishing rights in ocean waters, including ocean waters outside the State; and (d) representing to this Court that the district court retains jurisdiction to determine the location of their ocean U&A and they have waived their immunity for purposes of such a determination? 3. Do federal regulations defining Quileute and Quinault s ocean fishing grounds as an interim accommodation pending a determination by the district court deprive the district court of jurisdiction to determine the location of those grounds? 4. Did the district court err in denying Hoh intervention on the grounds that Hoh is already a party and entitled to participate fully in the subproceeding? STATEMENT OF THE CASE 1. Quileute, Quinault and Hoh s Complaints in Intervention. Quileute, Quinault and Hoh intervened in the case in MSER , , In its complaint in intervention, Quileute asked the district court to order, adjudge and decree that it owns, and it may authorize its members to exercise, a right derived from the laws and treaties of the United States to take fish at all usual and accustomed fishing places. MSER 373 (emphasis added). It specifically alleged it had U&A within and contiguous to the western portion of 6

15 Case: /18/2014 ID: DktEntry: 33-1 Page: 15 of 73 the State of Washington, including but not limited to the ocean waters of the Pacific, offshore of the western coast of Washington. MSER 370 (emphasis added). Similarly, Quinault and Hoh asked the district court to ORDER, ADJUDGE, and DECREE that each tribe owns and may authorize its members to exercise the right to take fish at its usual and accustomed places. MSER 381, 420 (emphasis added). Neither Quileute, Quinault nor Hoh limited their requests for relief to waters within the State or any other geographic area. 2. Final Decision I: the Case-Area Limitation and U&A Determinations. In 1973, two years after Quileute, Quinault and Hoh intervened, the district court limited the case to an adjudication of the tribes treaty fishing rights 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. ER 92; see also U.S. v. Washington, 384 F. Supp. at 400. The court also limited the case to application of the tribes rights to anadromous fish. Id. In Final Decision I, the district court held that the exercise of the tribes treaty fishing rights was limited... by the geographical extent of the usual and accustomed fishing places. 384 F. Supp. at 332, 402, The court defined usual and accustomed grounds and stations and identified some of those locations for each tribe. See id. at , 353, 356, , 401,

16 Case: /18/2014 ID: DktEntry: 33-1 Page: 16 of 73 Notwithstanding the case-area limitation, the court heard evidence and made findings regarding at least some U&A outside the case area. See, e.g., id. at (Finding 121 addressing Quinault U&A south and east of the case area). The court s finding regarding Quileute s U&A includes certain rivers and lakes and the adjacent tidewater and saltwater areas. Id. at 372. Its finding regarding Quinault s U&A states that [o]cean fisheries were utilized in the waters adjacent to their territory. Id. at 374. The court did not state explicitly whether these findings were limited to the case area. The court retained jurisdiction to determine, at the request of any party, the location of any of a tribe s usual and accustomed fishing grounds not specifically determined by Final Decision # I. Id. at The Case Area after Final Decision I. For several reasons, the case-area and species limitations in Final Decision I proved short lived. First, in Final Decision I, the district court made an equitable adjustment to compensate treaty tribes for the substantially disproportionate numbers of fish, many of which might otherwise be available to treaty right fishermen for harvest, caught by non-treaty fishermen in marine areas closely adjacent to but beyond the territorial waters of the State. 384 F. Supp. at 344; see id. at , 416. Except for harvests by foreign ships, this Court upheld this adjustment. U.S. v. Washington, 520 F.2d at

17 Case: /18/2014 ID: DktEntry: 33-1 Page: 17 of 73 In Puget Sound Gillnetters Ass n v. U.S. District Court, 573 F.2d 1123 (9 th Cir. 1978), aff d in part, vacated in part, Washington v. Washington State Commercial Passenger Fishing Vessel Ass n, 443 U.S. 658 (1979), this Court recognized that, in exercising its continuing jurisdiction, the district court would need to address the treaty ocean fishery as well. It noted there was a small tribal ocean fishery, but the parties did not agree whether it was included in the tribal share. Id. at 1129 n.7. 1 This Court stated that [i]f it is not now included, we presume the district court would include it on a proper showing. Id. The Court did not suggest that either treaty or non-treaty ocean fisheries could be disregarded if they took place outside the State. The Supreme Court upheld the district court s equitable adjustment for harvests outside State waters as modified by this Court, even though the fish were caught in waters subject to the jurisdiction of the United States, rather than of the State. Passenger Fishing Vessel, 443 U.S. at 688. It held that both treaty and non-treaty [s]hares in the fish runs should not be affected by the places where the fish are taken. Id. at 687. Given this holding, consideration of treaty fishing rights in the Pacific Ocean outside the initial case area became essential to implement the district court s decree. 1 This fishery took place more than three miles offshore. See, e.g., MSER 368 (describing Quileute trolling five miles offshore). 9

18 Case: /18/2014 ID: DktEntry: 33-1 Page: 18 of 73 Second, in 1975, the district court itself held that the case-area and species limitations in Final Decision I did not constrain its continuing jurisdiction. In response to requests for determination regarding non-anadromous fish, the district court acknowledged that [t]he subject matter of the original trial had been limited to off-reservation treaty Indian fishing rights in the case area and the application of said rights to anadromous fish resources. U.S. v. Washington, 459 F. Supp. 1020, 1048 (W.D. Wash 1978). However, the court pointed out that it had expressly retained continuing jurisdiction to assure implementation of [its] rulings, and held that [i]ssues relating to fishing outside the case area, onreservation fishing, or non-anadromous fish are clearly within the court s subjectmatter jurisdiction and could be brought before the court in a separate action. Id. (emphasis added). It concluded that the parties requests for determinations regarding non-anadromous fish were within the scope of its continuing jurisdiction, notwithstanding the limitations in Final Decision I: [E]quity favors prevention of a multiplicity of actions, and in the opinion of this court, proper exercise of its jurisdiction permits, and efficient administration of justice requires, this court to deal with matters related to, but not included within, Final Decision # 1 such as possible treaty-right nonanadromous fishing. Id. (emphasis added). The district court followed this holding in 1977 when, at Quinault s request, it entered orders allocating fishing opportunities in Grays Harbor, which was 10

19 Case: /18/2014 ID: DktEntry: 33-1 Page: 19 of 73 outside the original case area. See 459 F. Supp. at 1097, This Court affirmed, holding that, in exercising its continuing jurisdiction, the district court had the authority to expand the case area beyond that defined in the pretrial order and original decree. Puget Sound Gillnetters, 573 F.2d at Pacific Ocean waters outside of the State s three-mile jurisdiction have been within the case area ever since. For example, in 1977, Makah invoked the court s continuing jurisdiction under paragraph 25(f) of the 1974 injunction to obtain a determination of its ocean U&A. MSER 363. The court defined those grounds, notwithstanding that they extended far beyond the State s waters. U.S. v. Washington, 626 F. Supp. 1405, (W.D. Wash. 1985). This Court affirmed, finding that the determination was within the continuing jurisdiction of the district court. U.S. v. Washington, 730 F.2d 1314, 1316 (9 th Cir. 1984). Since then, the district court has exercised its jurisdiction to adjudicate treaty fishing rights for halibut, shellfish, blackcod, and Pacific whiting, including treaty fishing rights to harvest these species in Pacific Ocean waters outside the State. See, e.g., MSER (halibut); U.S. v. Washington, 873 F. Supp (W.D. Wash. 1994), aff d in part, rev d in part, 157 F.3d 630 (9 th Cir. 1998) (shellfish); MSER (blackcod); U.S. v. Washington, 143 F. Supp. 2d 1218 (W.D. Wash. 2001) (Pacific whiting). In the shellfish subproceeding, the court described its continuing jurisdiction as jurisdiction to hear other unresolved issues arising out 11

20 Case: /18/2014 ID: DktEntry: 33-1 Page: 20 of 73 of the Stevens Treaties, without reference to the species or case-area limitations in Final Decision I. 873 F. Supp. at Quileute, Quinault and Hoh s Invocation of the District Court s Jurisdiction in Pacific Ocean Waters outside the Original Case Area. Quileute, Quinault and Hoh have invoked the district court s continuing jurisdiction in Pacific Ocean waters beyond the initial case area on many occasions. For example, in 1981, 1985, 1987, 1989 and 1990, Quileute, Quinault and Hoh sought and obtained court approval for agreements that permitted their members to fish by invitation in each other s ocean fishing areas. 2 The ocean fishing areas were based on federal regulations (discussed below), and extended far beyond the State s jurisdiction. 3 Although Quileute, Quinault and Hoh now suggest (QQ Br. at 45-46; Hoh Br. at 43) that they sought the court s approval for these agreements only because a portion of their ocean fishing areas was within the original case area, they cite nothing in their requests for relief or the court s orders that even hints at this limitation. Notably, as discussed above, by the time 2 See ER ; MSER ; MSER ; ER , ; MSER ; ER 633; MSER ; MSER See, e.g, ER , Makah expressed serious reservations about the Quileute, Quinault and Hoh invitational fishery and reserved its rights to object to the legality and implementation of that fishery; however, it agreed, in the interests of inter-tribal cooperation, not to interpose such objections for the duration of the ocean management agreements before the Court. See, e.g., ER 639 ( 11). The 1990 Agreement stated it did not affect the parties respective positions on any tribe s usual and accustomed areas. ER 637 ( 5.a). 12

21 Case: /18/2014 ID: DktEntry: 33-1 Page: 21 of 73 Quileute, Quinault and Hoh submitted these requests, the court had held (at Quinault s request) that its continuing jurisdiction was not limited to the original case area. Quileute, Quinault and Hoh also invoked the district court s jurisdiction in proceedings involving halibut and blackcod fisheries. These fisheries take place in ocean waters beyond the State s jurisdiction. According to Quileute s Natural Resources Director, these fish can only be harvested more than three miles offshore: Q. Are any of the Tribe's fisheries limited to three miles from shore? A. No. Q. Why not? A. Well, the resources is outside of three miles. The black cod and the halibut are definitely outside of the three-mile area, so in order to access the -- that resource, you go outside the three miles generally. MSER 38 (emphasis added); see also MSER 433 (Quileute and Quinault travel upwards of 40 miles from the coast to halibut grounds); MSER (Quileute fishermen must make 60-mile journey to harvest halibut); MSER (blackcod is found approximately 30 to 40 miles offshore ). In the halibut proceedings, 4 Quileute, Quinault, Hoh and other tribes secured court orders increasing federal allocations to the treaty fishery 5 and numerous orders resolving inter-tribal management and allocation disputes. 6 4 In 1985, Makah sought judicial review of federal regulations allocating fishing opportunities for halibut between treaty and non-treaty fishermen. See Makah v. 13

22 Case: /18/2014 ID: DktEntry: 33-1 Page: 22 of 73 In the blackcod litigation, Quinault, Hoh and Makah sought and obtained two preliminary injunctions restricting Quileute s use of pot gear in the fishery; Quileute, Quinault and Makah sought and obtained court approval of a settlement agreement; and Quileute, Quinault and Makah invoked the court s jurisdiction to enforce that agreement and the court did so. 7 Quinault also sought a preliminary injunction restricting Quileute fishing south of Destruction Island. MSER Quileute agreed the court had jurisdiction to determine whether it had a right to fish in such waters, MSER 231, but argued the parties should be required to file a separate subproceeding requesting a determination of the Quileute Tribe s ocean fishing grounds, MSER 403. The court found Quinault had raised serious Mosbacher, No. C (W.D. Wash.). In 1992, the Mosbacher court held that threshold issues concerning the nature and extent of Makah s treaty right to take halibut had to be resolved in U.S. v. Washington pursuant to the district court s continuing jurisdiction even though the case involved fishing for a nonanadromous species outside the initial case area and transferred the case to the presiding judge in U.S. v. Washington. MSER , Makah then initiated Subproceeding 92-1 in U.S. v. Washington, seeking a determination that it had a treaty right to take halibut, that the Stevens Treaties secured to the tribes the right to harvest one-half of the halibut available for harvest in their U&A, and that Makah s U&A was previously adjudicated in this case. MSER MSER 295; MSER ; MSER 281; MSER ; MSER 263, ; MSER See MSER ; MSER ; MSER ; MSER ; MSER 145; MSER 139; MSER 135; MSER 91; MSER 80; MSER 77; MSER 72-76; MSER See, e.g., MSER ; MSER 231, 237; MSER 227; MSER ; MSER ; MSER ; MSER ; MSER ; MSER ; MSER ; MSER

23 Case: /18/2014 ID: DktEntry: 33-1 Page: 23 of 73 questions regarding Quileute s right to fish south of Destruction Island, held that a separate proceeding was not necessary to resolve the matter, and asked the parties to confer with each other about the best way to present the issue to the court for final determination. MSER n.4. However, the dispute over the blackcod fishery was settled before that matter was resolved. In repeatedly invoking district court jurisdiction in the halibut and blackcod proceedings, Quileute, Quinault and Hoh recognized that the district court s jurisdiction was not limited to the original case area. They do not now mention the halibut proceedings, but argue the blackcod proceedings involved only an interpretation of Judge Boldt s findings in Decision I regarding the northern and southern boundary of Quileute s adjudicated usual and accustomed fishing locations, and that [t]reaty fishing locations outside the case area were not at issue. QQ Br. at 43 (emphasis in original). However, since the fishery takes place some 30 to 40 miles offshore, the U&A dispute (as well as the management and allocation disputes) necessarily involved waters far outside the original case area. At the time, Quileute understood that the other tribes were requesting a determination of the Quileute Tribe s ocean fishing grounds. MSER 403 (emphasis added). 15

24 Case: /18/2014 ID: DktEntry: 33-1 Page: 24 of 73 Quileute also invoked the district court s jurisdiction to enforce its fishing rights in ocean waters beyond the State s jurisdiction in the crab fishery, asking the court to delay the non-tribal fleet from fishing in the following area: Northern Boundary: Sand Point (48º07 36 N. lat.) Southern Boundary: Destruction Island (47º40 30 N. lat.) Western Boundary: 125º44 00 W. long. (approximately 40 miles offshore) MSER 41 (emphasis added). In support of this request, Quileute alleged its U&A extends from the northern tip of Lake Ozette south to the Quinault River, and westward at least forty miles offshore, and that Judge Boldt established these boundaries in Finding of Facts 39 and 108. MSER 47 (emphasis added). It asserted that the requested delay in the non-tribal fishery would give [Quileute] the best opportunity to catch 50% of the harvestable crab from that portion of Washington catch area 59A-1 described above, MSER 54-55, i.e., in waters extending far beyond the original case area. Although Quileute and Quinault now argue (Br. at 44) that Quileute did not seek a determination of its U&A in the crab proceeding (but instead relied on federal regulations to establish those grounds), there is no question that it sought relief in waters far beyond the original case area, once again recognizing that the original case-area limitation no longer constrained the district court s continuing jurisdiction. 16

25 Case: /18/2014 ID: DktEntry: 33-1 Page: 25 of Federal Regulations Identifying Quileute, Quinault and Hoh Ocean Fishing Places. The Secretary of Commerce, acting through the National Marine Fisheries Service (NMFS), has promulgated regulations identifying Quileute, Quinault and Hoh s ocean fishing places, including a western boundary. The western boundary, however, is simply an extension of Makah s western boundary as adjudicated by the district court. See 61 Fed. Reg , (June 6, 1996). The first rule to include a western boundary for Quileute, Quinault, and Hoh was adopted in 1986 for purposes of describing Subarea 2A-1, the tribal area for halibut fishing. 51 Fed. Reg (May 2, 1986). The rule does not explain the basis for the western boundary, and states that 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 not been determined. Id. at The rule states that boundaries of a tribe s fishery may be revised as ordered by a Federal court. Id. at Quileute and Hoh submitted a joint comment on the halibut rule, expressing serious concern with the portion of the rule establishing their treaty fishing area. MSER They noted that no court, and no agreement, has ever established a western boundary for our treaty fishing areas. MSER 20. They alleged their fishermen went 100 to 200 miles out into the ocean before and during treaty times, and stated [t]here is no legal basis to establish a western boundary and there is 17

26 Case: /18/2014 ID: DktEntry: 33-1 Page: 26 of 73 no factual basis to support your regulatory provision. MSER 20. Quinault submitted a separate letter stating it shared Quileute and Hoh s concerns regarding the western boundary. MSER NMFS adopted the same boundaries as part of salmon fishing regulations in 1987, again with no discussion of the basis for the western boundaries. 52 Fed. Reg (May 6, 1987). Quileute submitted a comment protesting the use of the western boundary from the halibut regulation for the salmon fishery. It called the use of the Makah western boundary unlawful and unsupported by anything in the record, and requested that the NMFS show, consistent with our adjudicated treaty rights, that our adjudicated treaty usual and accustomed fishing area [has] only tentative northern and southern boundaries at this point and time, with no western nor eastern boundaries. MSER 25. In 1996, NMFS included the same boundaries in a rule describing the framework process for establishing tribal groundfish fisheries. The preamble describes the delineation of the western boundary: Under this rule, NMFS recognizes the same U&A areas that have been implemented in Federal salmon and halibut regulations for a number of years. The States and the Quileute tribe point out that the western boundary has only been adjudicated for the Makah tribe. NMFS agrees. NMFS, however, in establishing ocean management areas, has taken the adjudicated western boundary for the Makah tribe, 8 Quileute and Quinault s current assertion (Br. at 54) that the regulatory boundaries were based on evidence submitted by them is belied by these comments. 18

27 Case: /18/2014 ID: DktEntry: 33-1 Page: 27 of 73 and extended it south as the western boundary for the other three ocean treaty tribes. NMFS believes this is a reasonable accommodation of the tribal fishing rights, absent more specific guidance from a court. NMFS regulations, including this regulation, contain the notation that the boundaries of the U&A may be revised by order of the court. 61 Fed. Reg. at Quileute and Quinault submitted comments on the proposed rule expressing concern with the use of the boundaries previously adopted (for halibut and salmon fisheries) for groundfish fisheries. Quinault stated it did not object to the description of the U&As in the regulation if and only if, the description is without prejudice to proceedings properly brought under the continuing jurisdiction of the District Court in United States v. Washington to clarify or revise tribal usual and accustomed fishing areas. MSER 31. Quileute commented that it disagreed that the boundaries described in the regulation represented the extent of Quileute s U&A, but would agree that the boundaries represent federally established regulatory lines for the purposes of ocean fisheries management. MSER 34. In the preamble to the final rule, NMFS agreed with this characterization of its regulation, noting that the boundaries may be revised by order of the court. Specifically, NMFS noted that the rule is without prejudice to proceedings in United States v. Washington and stated that it will modify the boundaries in the regulation consistent with orders of the Federal Court. 61 Fed. Reg. at

28 Case: /18/2014 ID: DktEntry: 33-1 Page: 28 of 73 On these bases, it is the United States position that NMFS regulations addressing the Quinault and Quileute U&A s were not intended or interpreted to be a conclusive boundary determination, but instead were a reasonable accommodation necessary for the agency s management of the ocean fisheries in the absence of a judicial determination of the boundaries of the Tribes U&As. MSER 14. According to the United States, [i]t is expected that the regulations could and would be changed to comport with a subsequent federal court order further defining the Tribes U&A s. MSER 14. Further, NMFS has consistently assumed that [the district court in this case] would be the forum to adjudicate the western boundaries of the Quileute, Quinault, and Hoh usual and accustomed fishing grounds as it has done throughout the history of Untied States v. Washington in the context of other tribal U&A boundary disputes. MSER The Midwater Trawlers Litigation. In Midwater Trawlers Coop. v. Dep t of Commerce, 139 F. Supp. 2d 1136 (W.D. Wash. 2000), aff d in part, rev d in part, 282 F.3d 710 (9 th Cir. 2002), nontreaty fishing organizations (Midwater) and Washington challenged the description of Quileute, Quinault, and Hoh s U&As in NMFS groundfish regulation. NMFS and Washington filed a stipulation pursuant to which Washington withdrew that challenge and NMFS confirmed its understanding of the regulation: As stated in the preamble to the Final Rule, the identification of usual and accustomed grounds in 50 C.F.R (c) [now (c)] is 20

29 Case: /18/2014 ID: DktEntry: 33-1 Page: 29 of 73 MSER 157. not intended to and does not prejudice the court proceedings in United States v. Washington. The Final Rule is not intended to and does not establish the usual and accustomed fishing grounds and stations for the purposes of the United States v. Washington litigation. As such, the Final Rule does not have any presumptive or precedential effect on any future or concurrent litigation in United States v. Washington to establish the location of the usual and accustomed fishing grounds for the Quileute or Hoh Indian Tribes or the Quinault Nation. The Final Rule is not intended to and does not alter (or affect in any way) any burden of proof that may apply in any United States v. Washington subproceeding. Unlike the State, Midwater did not withdraw its challenge to this part of the regulation. In addressing this challenge, the district court upheld NMFS designation of Quileute, Quinault and Hoh s western boundary on the grounds that, [i]n the absence of any judicial determination in United States v. Washington to the contrary, it was... reasonable for the federal defendants to conclude that using the same salmon and halibut U & As for Pacific whiting was lawful. 139 F. Supp. 2d at 1144 (emphasis added). 9 In the ensuing appeal, Quileute and Quinault argued that the challenge to the regulatory description of their western boundary raised three issues, one of which was whether this Court should confine the scope of its review to the Secretary s actions, and defer a determination of Stevens Treaty fishing rights to the U.S. v. Washington Court, which retains continuing jurisdiction. MSER 106 (emphasis 9 This portion of the district court s opinion was vacated on appeal. See note 10 below. 21

30 Case: /18/2014 ID: DktEntry: 33-1 Page: 30 of 73 added). Quileute and Quinault explained that the U.S. v. Washington court retained continuing jurisdiction to determine the extent of their U&A, that the regulation could have no binding effect in the event of such a determination, and that the regulation was only intended to be an accommodation of their treaty right, which remained subject to revision by the U.S. v. Washington court. They also asserted that, because of their sovereign immunity, U.S. v. Washington was the only forum in which Midwater could obtain such a determination. And, they argued that, in contrast to U.S. v. Washington, a proceeding for judicial review of a Magnuson Act regulation was ill suited to a determination of treaty fishing rights. These points are found in the following passages from Quileute s and Quinault s amicus brief: Appellant Midwater seeks to expand the narrow scope of deferential judicial review under the Magnuson Act/APA to allow a determination of the treaty rights of Coastal Tribes not party to this litigation that could conflict with rulings in ongoing U.S. v. Washington (No. 9213) proceedings. 9 9 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. The Magnuson Act was not intended by Congress to provide a forum for citizen challenges to tribal treaty rights. Recognizing that NMFS could not bind the Courts with its description of U&As, the Framework Regulation defers to the U.S. v. Washington Court, stating that [National Marine Fisheries Service] will modify the boundaries 22

31 Case: /18/2014 ID: DktEntry: 33-1 Page: 31 of 73 in the regulation consistent with orders of the Federal Court. 61 Fed. Reg. at 28787, Acknowledging that the Secretary s accommodation of treaty rights would have no binding effect on the U.S. v. Washington proceedings, the State of Washington entered into a stipulation and dismissal of its challenge to the western boundaries of the Coastal Tribes U&As. Because the U.S. v. Washington Court had not determined the western boundary of the Quileute, Hoh and Quinault Tribes, the Framework Regulation s description of this boundary was intended as a reasonable accommodation of self-executing treaty rights based on existing law and the record before the agency, including ten years of Magnuson Act regulations utilizing the same boundary. By contrast to U.S. v. Washington, which has retained continuing jurisdiction over the determination of Stevens Treaty fishing rights, 384 F.Supp. at 419, 13 this APA review of informal rulemaking would be ill suited for such a determination. In this APA review, the Court does not have the benefit of a District Court s historical findings of fact regarding the intent of the parties at the time of the treaty. Nor can this Court review extensive anthropological and archaeological testimony about treaty-time fishing harvest and the parties understanding of treaty language. 13 As stated in Greene v. United States, 996 F.2d 973, (9 th Cir. 1993) Midwater s request for an adjudication of treaty fishing rights ignores the continuing jurisdiction of the [U.S. v. Washington] district court. Many tribes participate in this comprehensive judicial and administrative scheme. That is the forum that will resolve ultimately any attempt to reallocate treaty fishing rights and that is the forum where the Tulalip and all other interested parties can have their say. 23

32 Case: /18/2014 ID: DktEntry: 33-1 Page: 32 of 73 MSER (some footnotes omitted) (emphasis added). On these bases, Quileute and Quinault argued that this Court should confine the scope of its review to whether the Framework Regulation s accommodation of tribal treaty rights, given the facts and caselaw known to the Secretary, was arbitrary and capricious. MSER Quileute and Quinault also argued that Midwater lacked standing to challenge the regulatory description of their U&As. MSER This Court agreed, holding that Midwater had not suffered the requisite injury in fact and lacks standing to challenge the portion of the regulation identifying U & As with respect to the Hoh, Quileute, and Quinault Tribes. Midwater Trawlers, 282 F.3d at Makah s Request for Determination. Makah s RFD alleges that it developed a treaty fishery for Pacific whiting in 1996 and, from 1996 through 2007, was the only tribe to participate in the fishery. ER 573 ( 3.c.i). Throughout that period, NMFS made whiting allocations to 10 This holding effectively vacated the district court s ruling that had upheld the portion of the regulation identifying Quileute, Quinault and Hoh U&A; if, as this Court held, Midwater lacked standing to challenge that part of the rule, the district court had no jurisdiction to determine its validity. 282 F.3d at 716. Quileute and Quinault s current suggestion (Br. at 48) that this Court affirmed the district court s ruling on this point is therefore incorrect; in the passage they cite (id. at 718), this Court upheld the recognition of fishing areas more than three miles offshore based on a discussion of Makah, not Quileute or Quinault, U&A. 24

33 Case: /18/2014 ID: DktEntry: 33-1 Page: 33 of 73 Makah based on requests from Makah to accommodate the needs of its fishery. Id.; see Midwater Trawlers, 282 F.3d at 710. NMFS determined that Makah s requests were within its treaty entitlement, and that determination was upheld by this Court. ER 574 ( 3.c.i); see Midwater Trawlers Coop. v. Dep t of Commerce, 393 F.3d 994, (9 th Cir. 2004). A major challenge in managing the whiting fishery is bycatch of ESA-listed salmon and overfished rockfish stocks. See generally Starbound LLC v. Guitierrez, No. C JCC, 2008 WL (W.D. Wash. Apr. 15, 2008). To reduce bycatch, Makah requires use of salmon excluder devices, conducts test fisheries to determine whether bycatch is low enough to open its fishery, restricts night fishing, closes areas with high bycatch rates, and requires full retention and surrender of all rockfish. ER 574 ( 3.c.ii). These measures slow the harvest of Pacific whiting, particularly early in the season when bycatch rates are higher. Id.; Starbound at *6. In 2008, Quileute and Quinault informed NMFS they intended to participate in the whiting fishery. ER 574 ( 3.c.iii). Makah requested that each tribe provide an estimate of its harvests, and that the tribes seek separate allocations to meet the needs of their respective fisheries. ER 576 ( 3.c.vi). This would allow each tribe to prosecute its fishery at the most opportune time and avoid a race for fish that could result in excessive bycatch. See Starbound at *2, 6 (sector allocations in 25

34 Case: /18/2014 ID: DktEntry: 33-1 Page: 34 of 73 non-treaty fishery designed to minimize incentives for race for fish and prevent early-season disaster tow with excessive bycatch). Quileute and Quinault rejected Makah s proposals. ER 576 ( 3.c.vi). They asserted: (1) they are entitled to harvest a portion of any Indian treaty allocation in the fishery, even an allocation requested by Makah and designed to meet the needs of Makah s fishery; (2) NMFS has no legal authority to make, and Quileute and Quinault will not agree to, separate allocations for each tribe; (3) because whiting migrate from south to north in the spring, Quileute and Quinault intend to harvest whiting before they reach Makah fishing grounds, preempting Makah s fishery; and (4) Quileute and Quinault intend to begin participating in the whiting fishery in 2009 or 2010, and ultimately expect to have 5 or 6 catcher boats each, with anticipated annual harvests ranging from 35,000 to 42,000 metric tons per tribe. ER ( 3.c.iii). Quileute and Quinault s intent to enter the fishery on these terms presented a substantial threat to Makah s treaty fishery. ER 575 ( 3.c.iv). Even if NMFS were to increase the overall treaty allocation, the harvest strategy and levels proposed by Quileute and Quinault would result in a substantial reduction in Makah s harvest. Id. And, by forcing Makah into a race for fish, Quileute and Quinault would compel Makah to fish earlier in the season, resulting in increased bycatch of overfished stocks. Id. 26

35 Case: /18/2014 ID: DktEntry: 33-1 Page: 35 of 73 Faced with this threat, Makah informed Quileute and Quinault that their approach could trigger the need for a judicial determination of their ocean U&A. ER 576 ( 3.c.vii). To determine whether their U&A extended far enough offshore to enable them to participate in the whiting fishery, Makah undertook, at its own expense, to assemble archaeological, anthropological, historical and ethnographic information regarding their treaty-time fisheries. ER 577 ( 3.c.ix). That information indicated that Quileute and Quinault s treaty-time fishing grounds extended no more than 5 to 10 miles offshore, which would be insufficient to permit them to preempt or otherwise threaten Makah s whiting fishery. ER 577 ( 3.c.ix & x). This information also indicated to Makah, for the first time, that on-going Quileute and Quinault fisheries for salmon, halibut and blackcod, which compete directly with Makah fisheries for the same species, were being prosecuted outside Quileute and Quinault s U&A. ER 578 ( 3.d). Makah made additional efforts to resolve its concerns with Quileute and Quinault, but those efforts were unsuccessful. ER ( 3.c.viii). As of the filing date of Makah s RFD, neither Quileute nor Quinault had notified Makah of any change in their plans to enter the fishery, reject any provision for separate tribal allocations, and seek to preempt the Makah fishery. ER 576 ( 3.c.vii). Under these circumstances, Makah requested that the district court determine the boundaries of Quileute and Quinault s ocean U&A. ER 578 ( 4). 27

36 Case: /18/2014 ID: DktEntry: 33-1 Page: 36 of 73 In particular, Makah requested that the court define the western boundary of such areas, which Makah believes is approximately 5 to 10 miles offshore, and the northern boundary of Quileute U&A, which Makah believes is a line drawn westerly from the vicinity of Norwegian Memorial. Id. Makah did not seek a determination of Hoh s ocean U&A because Hoh was not fishing (or threatening to fish) in a manner that harmed Makah. ER 570 n Procedural History and Rulings Presented for Review. Quileute and Quinault filed motions to dismiss Makah s RFD on sovereign immunity and other grounds. ER , Hoh filed a response in support of their motions. MSER The district court denied the motions on September 28, ER With respect to sovereign immunity, the court first noted that Quileute and Quinault had joined Hoh in a motion to restrict Makah s ocean salmon fishery in 1983 and obtained a ruling that Makah waived its sovereign immunity and consented to full adjudication of its treaty fishing rights when it intervened in this case seeking a determination of those rights, and asking that the Court exercise its equitable powers to protect those rights. ER 41 (quoting U.S. v. Washington, 626 F. Supp. at 1471) (emphasis added). The court also noted that, when the court proposed a sunset order that would have closed the case, Quileute and Quinault joined other tribes, including Hoh, in opposing the order, expressing the concern that, if the case were closed, tribes 28