Case 2:09-sp RSM Document 296 Filed 02/03/15 Page 1 of 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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1 Case :0-sp-0000-RSM Document Filed 0/0/ Page of Honorable Ricardo S. Martinez UNITED STATES OF AMERICA, et al., v. STATE OF WASHINGTON, et al., UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE Plaintiffs, Defendants. No. C0- RSM Subproceeding No. 0-0 MAKAH S SURREPLY [Local Rule (g)] MAKAH S SURREPLY Case No. C0-, Subproceeding FOURTH AVENUE, SUITE SEATTLE, WASHINGTON TEL. () -; FAX () -

2 Case :0-sp-0000-RSM Document Filed 0/0/ Page of Pursuant to Local Civil Rule (g), Makah hereby moves to strike the following material from the Quileute and Quinault Reply to Makah, Washington State, and United States Responses re Motion to Define the Burden of Proof (Dkt. # 0) and the Third Declaration of Lauren King in Support of Quileute and Quinault s Reply Re Motion to Define Burden of Proof (Dkt. # ): () The portion of the Reply from page, line through page, line ; () Page of Exhibit A to Third King Declaration (Dkt. # - at p. ); () Exhibit C to Third King Declaration (Dkt. # - at pp. -); () Exhibit D to Third King Declaration (Dkt. # -); and () Exhibit E to Third King Declaration (Dkt. # -). This material raises for the first time in Quileute and Quinault s reply a new and significant legal issue, i.e. whether the District Court s and Ninth Circuit s ruling in the Makah Ocean U&A case that evidence of hunting marine mammals at treaty time does not establish fishing U&A remains good law or has been overruled sub silentio. It also seeks to establish as law of the case that marine mammals are included in the Stevens Treaty fishing provision. The Court should strike this material and resolve the issue separately after an opportunity for full briefing by the parties. ARGUMENT As a general rule, a movant may not raise new facts or arguments in his reply brief. Karpenski v. Am. Gen. Life Cos., F. Supp. d, (W.D. Wash. ) (Martinez, J., striking exhibits that should have been introduced by Defendants in their opening brief ) (citations omitted). The reason behind this rule is that it essentially prevents [the non-moving party] from providing any response. Id. at (citation omitted). This Court has stricken MAKAH S SURREPLY PAGE Case No. C0-, Subproceeding FOURTH AVENUE, SUITE SEATTLE, WASHINGTON TEL. () -; FAX () -

3 Case :0-sp-0000-RSM Document Filed 0/0/ Page of new arguments raised improperly on reply and the attached declaration. See Karpenski v. Am. Gen. Life Cos., F. Supp. d, - (W.D. Wash. ) (Martinez, J.). Quileute and Quinault relied on the Makah Ocean U&A case in their Motion to Define the Burden of Proof, using both the District Court and Ninth Circuit opinions to support their argument regarding the standard of proof for U&A determinations. Dkt. # at p. (quoting U.S. v. Washington, F. Supp. 0, (W.D. Wash. ) and U.S. v. Washington, 0 F.d, -) (th Cir. )); see also Dkt. # at pp.,. Their motion does not suggest that these decisions are no longer good law or have been affected by subsequent decisions in U.S. v. Washington. Makah s response also cited the Makah Ocean U&A decisions for both the standard of proof and burden of proof issues. Dkt. # at pp. -. In particular, Makah argued: In the Makah case, the Court held that evidence of hunting marine mammals at treaty time did not establish U&A. U.S. v. Washington, F. Supp. at ( Although the Makah traveled distances greater than forty miles from shore for purposes of whaling and sealing, the Court finds that it is clearly erroneous to conclude that the Tribe customarily traveled such distances to fish. ), aff d, U.S. v. Washington, 0 F.d at. Dkt. # at -. Quileute and Quinault s reply continued to cite with approval to the Makah Ocean U&A Ninth Circuit decision. Dkt. # 0 at pp. - (citing case and brief relying on Ninth Circuit decision). However, relying on three briefs filed collectively by the tribal parties in the trial and appellate proceedings in the Shellfish case (Subproceeding -) and the Ninth Circuit s decision in that case, they also argue that it has been resolved and is law of the case that non-fish species such as shellfish and sea mammals are included in the Stevens Treaty fishing provision. Id. at p.. It is this argument and the documents filed in support that Makah seeks to strike. MAKAH S SURREPLY PAGE Case No. C0-, Subproceeding FOURTH AVENUE, SUITE SEATTLE, WASHINGTON TEL. () -; FAX () -

4 Case :0-sp-0000-RSM Document Filed 0/0/ Page of Thus, after citing the Makah Ocean U&A case with approval in their motion, Quileute and Quinault raise for the first time on reply the issue of whether the Makah Ocean U&A decisions remains good law with respect to the holding that evidence of marine mammal hunting does not establish fishing U&A. Moreover, they seek to establish also for the first time on reply that sea mammals are included in the Stevens Treaty fishing provision as law of the case. Dkt. # 0 at p.. Their arguments are wrong for many reasons, including that the Shellfish case was about shellfish, not marine mammals, and no holding of that case addressed or had reason to address marine mammals under the Stevens Treaties. The Court relied primarily on the language of the shellfish proviso, which only made sense if the treaty drafters understood shellfish were fish. In contrast, the drafters did not consider whales and seals to be fish, as evidenced by separate reference to whaling and sealing in the Treaty of Neah Bay, Stat.. Regardless of the merits of Quileute and Quinault s arguments, they should not be resolved in a vacuum after being raised for the first time on reply. The rule prohibiting new arguments on reply is particularly appropriate here, where the improperly raised issue is disputed and involves a fundamental issue of treaty interpretation that has not been resolved by the Court. Accordingly, the Court should strike the reply brief s arguments and supporting documents specified above and consider whether evidence of marine mammal hunting can be used to establish fishing U&A only after a full opportunity for briefing by the parties. See Karpenski, F. Supp. d at -. MAKAH S SURREPLY PAGE Case No. C0-, Subproceeding FOURTH AVENUE, SUITE SEATTLE, WASHINGTON TEL. () -; FAX () -

5 Case :0-sp-0000-RSM Document Filed 0/0/ Page of Dated: February,. /s Marc D. Slonim Marc D. Slonim, WSBA # Joshua Osborne-Klein, WSBA # Attorneys for Makah Indian Tribe MAKAH S SURREPLY PAGE Case No. C0-, Subproceeding FOURTH AVENUE, SUITE SEATTLE, WASHINGTON TEL. () -; FAX () -

6 Case :0-sp-0000-RSM Document Filed 0/0/ Page of CERTIFICATE OF SERVICE I hereby certify that on February,, I electronically filed the forgoing document using the CM/ECF system, which will notify all parties in this matter who are registered with the Court s CM/ECF filing system of such filing. Dated: February,. s/ Cara Hazzard Cara Hazzard, Legal Assistant MAKAH S SURREPLY PAGE Case No. C0-, Subproceeding FOURTH AVENUE, SUITE SEATTLE, WASHINGTON TEL. () -; FAX () -