Case 2:05-sp RSM Document 193 Filed 10/25/12 Page 1 of 11

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1 Case :0-sp-0000-RSM Document Filed 0// Page of THE HONORABLE RICARDO S. MARTINEZ UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 0 UNITED STATES OF AMERICA, et al., Plaintiff, vs. STATE OF WASHINGTON, et al., Defendant. No. C0- - PHASE I Sub-proceeding 0- Noted for: December, 0 0 The Swinomish Indian Tribal Community ("Swinomish"), a participating party in this subproceeding, moves for partial summary judgment declaring that the Suquamish Indian Tribe ("Suquamish") does not have usual and accustomed fishing places ("U&As") in Penn Cove, Saratoga Passage, and Holmes Harbor. The motion is based upon the preclusive effect of the judgment entered and issues decided by this Court in US. v. Washington Sub-proceeding 0-. In Page of 0 Moorage Way LaConner, Washington TEL 0/- FAX 0/-0

2 Case :0-sp-0000-RSM Document Filed 0// Page of filing this motion we express no view on the merits of the broader claims of the Tulalip Tribes concerning these and other marine areas. Because the motion is based on the preclusive issue effect of a prior decision, there is no genuine issue of material fact. A motion for summary judgment is the appropriate vehicle for addressing the preclusive effect of a prior judgment. Moore's Federal Practice.0[]. The argument for preclusion is straightforward. In Subp. 0- this Court ruled that 0 0 Suquamish did not have U&As in Skagit Bay or Saratoga Passage because Judge Boldt did not intend to include those waters. Subp. 0- Dkt. No. ; Declaration of James M. Jannetta ("Jannetta Dec.") -. This determination was based on the Court's finding that there was no evidence before Judge Boldt at the time the U&A decision was made that Suquamish fished or even traveled through the waters on the east side ofwhidbey Island. Id.; Jannetta Dec. The decision and finding are preclusive as to Penn Cove, Saratoga Passage and Holmes Harbor. STATEMENT OF RELEVANT FACTS In this case the Tulalip Tribes seeks a declaration that Suquamish does not have U&As in various marine waters east, south and west ofwhidbey Island, including the waters addressed in this motion: Penn Cove, Saratoga Passage, and Holmes Harbor. Subp. 0- Dkt. Nos.,. These waters, shown on the map atjannettadec. and also attached to this motion, p., areallpartofthe "nearly enclosed or inland waters to the east of Whidbey Island." Upper Skagit Indian Tribe v. Washington, 0 F.d 00, 0 n. (th Cir. 00). Sub Sub-proceeding 0- also dealt with Suquamish U&As in the waters east ofwhidbey Island. Page of 0 Moorage Way LaConner, Washington TEL 0/- FAX 0/-0

3 Case :0-sp-0000-RSM Document Filed 0// Page of 0 0 Suquamish did not have U&As in Skagit Bay or in the northern portion of Saratoga Passage where Upper Skagit fished. Subp. 0-, Dkt. No. p. ; Jannetta Dec.. Swinomish filed a cross-claim that added to the sub-proceeding the remaining waters of Saratoga Passage, where Swinomish fishes but Upper Skagit does not. Subp. 0-, Dkt No., pp. -; Jannetta Dec. -. In pleading its claim Swinomish invoked the continuing jurisdiction of the Court under Paragraph (a)() based on "actions intended or effected" by Suquamish in violation of the Court's decrees. U.S. v. Washington, F. Supp., (W.D. Wash. ), as modified by the Court's order of August,. Subp. 0-, Dkt No., p. ; Jannetta Dec.. In line with this jurisdictional provision, Swinomish included Saratoga Passage because Suquamish was fishing there. Id., pp. -; JannettaDec. -. SwinomishleftoutHolmesHarborbecause Suquamish was not fishing there. Id. The area in dispute in 0- was thus an amalgam of the two different but overlapping areas pled by Upper Skagit and Swinomish. The Court treated the amalgam as one case area for purposes of Subp. 0-. The area was referred to colloquially as Skagit Bay and Saratoga Passage, and more technically as Shellfish Management Catch and Reporting Areas A and C. Subp. 0-, Dkt, No. p., n. ; J annetta Dec.. Hereafter, we will refer to the 0- claim area as Areas A and C. See map, p. 0, below. Subp. 0- was decided on cross-motions for summary judgment based upon an examination ofthe record before Judge Boldt at the time he made the Suquamish U&A determination in. Subp. 0- Dkt. No. ; JannettaDec. -. In Subp. 0- this Court ruled that Suquamish did not have U&As in Areas A and C. The Court first decided that the term 'Puget Sound,' as used by 0 Moorage Way Page of LaConner, Washington TEL 0/-; FAX 0/-0

4 Case :0-sp-0000-RSM Document Filed 0// Page of 0 0 Judge Boldt, was not ambiguous and included the waters east ofwhidbey Island.!d. p. ; Jannetta Dec.. However, the Court then proceeded to "look at the actual evidence that was before Judge Boldt to determine if it 'suggests that Judge Boldt intended something other than the apparent meaning."'!d., quotingmuckleshoot Tribe v. Lummi Indian Tribe, F.d, (th Cir. ). The Court then framed the central factual issue in the case: [T]he burden is on the Upper Skagit and the Swinomish to demonstrate that there was no evidence [in the record before Judge Boldt] that the Suquamish fished on the east side of Whidbey Island, or traveled through there on their way up to the San Juans or the Fraser River area.!d. (emphasis added). This Court then examined the record before Judge Boldt, which consisted almost entirely of the report of Dr. Barbara Lane and her testimony at the hearing.!d. pp. -; J annetta Dec. -. A major focus of the inquiry was a map that Dr. Lane used to describe the Suquamish travel route. Id. This map, Subp. 0-, Dkt. No., p. ; Jannetta Dec., is attached to this motion, p.. The description of the route extended through areas and on the map, which excluded the waters on the east side of Whidbey Island. Subp. 0-, Dkt. No., p. ; Jannetta Dec.. The Court concluded from this and other aspects of the record before Judge Boldt that there was no evidence in the record that Suquamish fished or traveled through the waters east ofwhidbey Island.!d., pp., ; J annetta Dec.,. The Court concluded based on that finding determined that Judge Boldt did not intend to include Areas Aand C in Suquamish U&As.!d. p. ; Jannetta Dec.. Judgment for Upper Skagit and Swinomish was entered. Subp. 0-, Dkt. No. ; Jannetta Dec.. Page of 0 Moorage Way LaConner, Washington TEL 0/-; FAX 0/-0

5 Case :0-sp-0000-RSM Document Filed 0// Page of 0 0 The Ninth Circuit affirmed the decision. Upper Skagit Indian Tribe v. Washington, 0 F.d 00 (th Cir. 00). The appellate court affirmed that this Court had "faithfully followed the Muckleshoot construct" in examine the record before Judge Boldt to ascertain whether he meant something other than the apparent meaning of the U&A finding. Id. at 0. The Ninth Circuit also arrived at the same factual conclusion as this Court based on the examination of the record: ''There is no evidence in the record that the Suquamish fished or traveled in the waters on the eastern side of Whidbey Island." Id. at 0 (emphasis added). In addressing Judge Boldt's intent, the appeals court also emphasized that in his ruling from the bench on Suquamish U&As Judge Boldt clearly excluded the waters east of Whidbey Island by referring to the travel route as areas and on the map that Dr. Lane had used in her testimony. Id.; see attached map p.. ARGUMENT I. Claim Preclusion Bars Suquamish Claims to U&As in Penn Cove and Saratoga Passage. The doctrine of claim preclusion, formerly known as res judicata, bars a claim in a subsequent case if that same claim has reached final judgment in a previous action involving the same parties (or their privies). In re International Nutronics, Inc., F.d, (th Cir. ). In Subp. 0- final judgment was entered that Suquamish has no U&As in Areas A and C. Subp. 0-, Dkt. No. ; J annetta Dec.. The Ninth Circuit affirmed that judgment. Suquamish, Swinomish and Tulalip were all parties to Subp. 0- and Suquamish actively defended the claims against it. Since Saratoga Passage and Penn Cove are both within Area C, see attached map, p. 0, claim preclusion applies to them in this sub-proceeding. Page of 0 Moorage Way LaConner, Washington TEL 0/-; FAX 0/-0

6 Case :0-sp-0000-RSM Document Filed 0// Page of 0 0 II. Issue Preclusion Bars Suquamish U&As in Holmes Harbor. It is a somewhat different story with Holmes Harbor. Holmes Harbor, an appendage of Saratoga Passage, is part of the waters east ofwhidbey Island. However, Holmes Harbor is its own separate Shellfish Management Catch and Reporting Area, Area D, and so was not a part of the claims brought in Subp. 0-. See map p. 0. The operative preclusion doctrine that applies to Holmes Harbor in this case is issue preclusion, formerly known as collateral estoppel. Issue preclusion focuses on the issues, as opposed to the claims, litigated in a prior case. These issues may be factual or legal. Moore's, op. cit.. 0 []. For issue preclusion, or collateral estoppel, to apply, "the issue involved must have been litigated and decided in the first case." Kamilche Co. v. U.S., F.d 0, 0 (th Cir. ). The preclusive issues decided in Subp. 0- that apply to Holmes Harbor in this case are: () The factual issue that there was no evidence in the record before Judge Boldt when he made the Suquamish U &As determination that Suquamish fished or traveled through the waters east ofwhidbey Island, Subp. 0-, Dkt. No., pp.,, ; Jannetta Dec... ; Upper Skagit, 0 F.d at 0; () The factual issue that Judge Boldt intended to exclude the waters east of Whidbey Island from Suquamish U&As by his reference to the map used in describing Suquamish U&As; Upper Skagit, 0 F.d at 0; see map p. ; and () The conclusion based upon these facts that Judge Boldt did not intend to include the waters east ofwhidbeyisland in Suquamish U&As. Subp. 0-, Dkt. No., pp.,, Jannetta Dec. -, Upp_er Skagit, 0 F.d at 0. Page of 0 Moorage Way LaConner, Washington TEL 0/-; FAX 0/-0

7 Case :0-sp-0000-RSM Document Filed 0// Page of 0 0 In Kamilche the Ninth Circuit identified four factors to consider in detennining whether issue preclusion applies. F.d at 0. All of the factors favor the application of issue preclusion in this case. () Is there a substantial overlap between the evidence advanced in the second proceeding and that advanced in the first? Here, the evidence- indeed, the universe of evidence- is exactly the same in the two cases. The evidence of Judge Boldt's intent is limited to the record before Judge Boldt at the time the U &As decision was made. Exactly the same evidence applies to Area D as to Areas A and C. In addition, the finding that there is no evidence in the record before Judge Boldt that Suquamish fished or traveled through Areas A and C of necessity applies to Area D as well. One cannot enter Holmes Harbor without traveling through Saratoga Passage. Conversely, if there were any evidence before Judge Boldt that Suquamish traveled in Holmes Harbor, it would have been equally applicable to Subp. 0- because it would have constituted evidence that Suquamish traveled through Saratoga Passage as well. () Is the same rule oflaw involved in the prior proceeding? Yes. The Muckleshoot line of cases applied to determine Judge Boldt's intent is as applicable to U&As in Area A as it was in Subp. 0-, and nothing in the law has changed in the two years since the Ninth Circuit decided the appeal in 0-. () Could pretrial preparation and discovery in the first proceeding reasonably be expected to have embraced the matter to be presented in the second? The universe of relevant facts and documents is exactly the same in Sub_. 0- as it is in this 0 Moorage Way Page of LaConner, Washington TEL 0/-; FAX 0/-0

8 Case :0-sp-0000-RSM Document Filed 0// Page of 0 case. Moreover, any evidence that Suquamish fished or traveled in Holmes Harbor would have been highly relevant to Subp. 0- because that evidence would show that Suquamish traveled through AreaC. () How closely related are the claims? The claims are identical save for the fact that they involve different Areas adjacent to one another in the waters east of Whidbey Island. The fact that Holmes Harbor is an appendage of Saratoga Passage that cannot be reached except through Saratoga Passage makes for an even closer relationship between the claims. Since issue preclusion applies, Suquamish cannot now claim a right to relitigate the dispositive issues decided in Subp. 0-. Issue preclusion compels the Court to rule in this case that Suquamish does not have U&As in Holmes Harbor, Area D. CONCLUSION The decision and the resolution of the factual and legal issues in Subp. 0- preclude litigation in this sub-proceeding of whether Suquamish has U&As in Penn Cove, Saratoga Passage, and Holmes Harbor. Judgment should be entered declaring that Suquamish does not have U&As in those waters based upon the preclusive effect ofsubp The result would be the same if the law of the case doctrine applied here. Under this doctrine, a court is generally precluded from revisiting an issue previously decided in the same case by that court or a higher court. US. v. Lummi Indian Tribe, F.d, (th Cir. 000). In Lummi the Ninth Circuit applied the doctrine to a prior district court ruling in the same sub-proceeding (Subp. -). I d. Swinomish believes that the law of the case doctrine does not apply here because the previous decision was the flnal decision in a different sub-proceeding. The Ninth Circuit affirmed the district court, now the law of the circuit, only underscores this point.. Page of 0 Moorage Way LaConner, Washington TEL 0/- FAX 0/-0

9 Case :0-sp-0000-RSM Document Filed 0// Page of 0 Is/ James M. Jannetta, WSBA # Swinomish Indian Tribal Community 0 Moorage Way LaConner W A Phone: 0--0 Fax: jjannetta@swinomish.nsn.us Attorney for Swinomish Indian Tribal Community CERTIFICATE OF SERVICE. I hereby certify that on October,0, I electronically filed the Swinomish Response to Tulalip Request for Determination with the Clerk of the Court using the CMIECF system which will send notice of the filing to all parties registered in the CM/ECF system for this matter. By: Is/ James M. Jannetta James M. J annetta Counsel for Swinomish Indian Tribal Community 0 Page of 0 Moorage Way LaConner, Washington TEL 0/- FAX 0/-0

10 Case :0-sp-0000-RSM Document Filed 0// Page 0 of Attachment to SITC Motion for Partial Summary Judgment 0

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