Date: 09-29-2017

Case Style:

Case Number: 15-35540

Judge: Michael Daly Hawkins

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Western District of Washington (King County)

Plaintiff's Attorney: David Stoller Hawkins (argued), Office of the Tribal
Attorney, Upper Skagit Indian Tribe, Sedro Woolley,
Washington; Andrew H. Salter, Teton Law Group LLC,
Jackson, Wyoming; for Plaintiff-Appellee Upper Skagit
Indian Tribe.

Defendant's Attorney: John W. Ogan (argued) and Howard G. Arnett, Karnopp
Petersen, Bend, Oregon; James Rittenhouse Bellis,
Suquamish Tribe, Suquamish, Washington; for Defendant-
Appellant Suquamish Indian Tribe.

Lauren Patricia Rasmussen (argued), Law Offices of Lauren
P. Rasmussen, Seattle, Washington, for Real-Parties-in-
Interest-Appellees Jamestown S’Klallam and Port Gamble
S’Klallam Tribes.

Mason D. Morisset and Rebecca JCH Jackson, Morisset
Schlosser Jozwiak & Somerville, Seattle, Washington, for
Real Parties in Interest-Appellees Tulalip Tribes.

Description: In this treaty fishing rights case, the Upper Skagit Indian
Tribe (“the Upper Skagit”) filed a Request for Determination
as to the geographic scope of the Suquamish Indian Tribe’s
(“the Suquamish”) usual and accustomed fishing grounds and
stations (“U&A”) as determined by Judge Boldt in 1975.
Specifically, the Upper Skagit sought a determination that the
Suquamish’s U&A determinations do not include Chuckanut
Bay, Samish Bay, and a portion of Padilla Bay where the
Upper Skagit has its own court-approved U&A
determinations (“the Contested Waters”). On cross-motions
for summary judgment, the district court concluded that
Judge Boldt did not intend to include the Contested Waters in
the Suquamish’s U&A determinations and, accordingly,
granted summary judgment to the Upper Skagit. We have
jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing de
novo, we affirm.
I. Background
As this Court has noted, “[t]here is a lengthy background
to the complex litigation over the treaty fishing rights of the
Indian tribes in Western Washington.” Tulalip Tribes v.
Suquamish Indian Tribe, 794 F.3d 1129, 1131 (9th Cir.
2015). In the first United States v. Washington decision,
Judge Boldt determined the U&As for several tribes and
defined “usual and accustomed grounds and stations” as
“every fishing location where members of a tribe customarily
fished from time to time at and before treaty times, however
distant from the then usual habitat of the tribe, and whether or
not other tribes then also fished in the same waters.” 384 F.
UPPER SKAGIT V. SUQUAMISH INDIAN TRIBE 5
Supp. 312, 332 (W.D. Wash. 1974) (Decision I), aff’d,
520 F.2d 676 (9th Cir. 1975). By contrast, Judge Boldt
explained, “occasional and incidental trolling” in marine
waters “used as thoroughfares for travel” does not constitute
a U&A. Id. at 353.
Approximately one year after Judge Boldt issued
Decision I, the Suquamish, along with several other tribes,
intervened by filing a Request for Determination for the right
to participate in a herring fishery. See United States v.
Washington, 459 F. Supp. 1020, 1027–28 (W.D. Wash. 1978)
(Decision II). To support its Request, the Suquamish
submitted three anthropological reports by expert witness Dr.
Barbara Lane regarding tribal fishing. One of Dr. Lane’s
reports specifically pertained to fishing by the Suquamish at
and before the time of the Treaty of Point Elliott. Judge
Boldt found Dr. Lane’s reports “to be ‘highly credible’ and
‘very helpful in determining by direct evidence or reasonable
inferences the probable location and extent of’ U & As.”
Tulalip, 794 F.3d at 1132 (quoting Decision II, 459 F. Supp.
at 1059).
In March 1975, Judge Boldt concluded that the
Suquamish had made a prima facie showing of treaty
entitlement to participate in the herring fishery and would be
entitled to conduct herring fisheries at its claimed U&A
determinations, “subject to the state’s authority to contest any
such location.” Judge Boldt also scheduled a hearing “to
receive further anthropological or biological testimony” about
unresolved “herring fishery issues.”
Before that hearing began, the Suquamish filed proposed
fishing regulations, as well as a map identifying its claimed
U&A determinations (“Claim Map”), divided into four areas:
UPPER SKAGIT V. SUQUAMISH 6 INDIAN TRIBE
roughly, the Strait of Juan de Fuca through the San Juan
Islands (“Area One”); north of the San Juan Islands to the
Canadian Border (“Area Two”); east and southeast of Lummi
Island, including Bellingham Bay, Hale Passage,1 and the
Contested Waters (“Area Three”); and southeast of the San
Juan Islands through Hood Canal and into the southern Puget
Sound (“Area Four”).
In April 1975, Judge Boldt presided over three days of
hearings regarding his prima facie U&A determinations. Dr.
Lane testified to several tribes’ treaty-time fishing, including
the Suquamish’s. The state objected that the Suquamish had
not sufficiently proven that its U&A determinations
“reach[ed] as far north” as claimed, but the court ruled that,
because “no tribe has objected, . . . that is at least sufficient
prima facie showing[.]” Nevertheless, Judge Boldt instructed
the state and the Suquamish to question Dr. Lane on that
issue. After Dr. Lane finished testifying, the state reiterated
its objection, contending the Suquamish had made a
“deficient” claim of entitlement to its U&A determinations in
“all or a portion of [Areas One and Two].” Judge Boldt ruled
from the bench that the Suquamish had made a prima facie
showing of its U&A determinations “through the north Sound
areas; that is, areas one and two.” Neither the state nor Judge
Boldt discussed the Suquamish’s U&A determinations in
Area Three of the Claim Map, where the Contested Waters in
this proceeding lie.
Judge Boldt then issued a written order (“the Order”)
holding that the Suquamish’s U&A determinations “include
the marine waters of Puget Sound from the northern tip of
1 Also referred to as “Hales Passage” and “Hale’s Passage” in the
record.
UPPER SKAGIT V. SUQUAMISH INDIAN TRIBE 7
Vashon Island to the Fraser River including Haro and Rosario
Straits, the streams draining into the western side of this
portion of Puget Sound and also Hood Canal.” Decision II,
459 F. Supp. at 1049.
Invoking the district court’s continuing jurisdiction, the
Upper Skagit and the Tulalip Tribes have each challenged the
Suquamish’s U&A determinations.2 In subproceeding 05-03,
this Court affirmed that the Suquamish’s U&A
determinations do not include Saratoga Passage or Skagit
Bay. See Upper Skagit Indian Tribe v. Washington, 590 F.3d
1020, 1026 (9th Cir. 2010). And in subproceeding 05-04, this
Court affirmed that the Suquamish’s U&A determinations do
include Possession Sound, Port Gardner Bay, and the mouth
of the Snohomish River, as well as Cultus Bay, Useless Bay,
Mutiny Bay, and Admiralty Bay. See Tulalip, 794 F.3d at
1133–36.
In 2014, the Upper Skagit initiated this proceeding by
filing a Request for Determination that the Suquamish’s U&A
determinations do not include the Contested Waters—that is,
Chuckanut Bay, Samish Bay, and a portion of Padilla Bay
where the Upper Skagit has its own court-approved U&A
determinations. On cross-motions for summary judgment,
the district court concluded that Judge Boldt did not intend to
include the Contested Waters in the Suquamish’s U&A
determinations, because the record before Judge Boldt lacked
2 In Decision I, the district court retained 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 this decree.”
384 F. Supp. at 408. A party invoking the court’s continuing jurisdiction
“must satisfy various procedural prerequisites and then file and serve a
‘Request for Determination.’” Tulalip, 794 F.3d at 1131 n.1 (quoting
Decision I, 384 F. Supp. at 419).
UPPER SKAGIT V. SUQUAMISH 8 INDIAN TRIBE
any evidence that the Suquamish fished or traveled through
the Contested Waters. Accordingly, the district court granted
summary judgment to the Upper Skagit. The court also
declined to apply claim preclusion to the Upper Skagit’s
Request for Determination. This timely appeal followed.3
II. Discussion
This Court follows the two-step Muckleshoot analytical
framework to interpret Judge Boldt’s U&A findings. Tulalip,
794 F.3d at 1133; see Upper Skagit, 590 F.3d at 1023 (citing
Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355
(9th Cir. 1998) (Muckleshoot I), Muckleshoot Indian Tribe v.
Lummi Indian Nation, 234 F.3d 1099 (9th Cir. 2000)
(Muckleshoot II), and United States v. Muckleshoot Indian
Tribe, 235 F.3d 429 (9th Cir. 2000) (Muckleshoot III)). At
step one, “the moving party bears the burden of offering
evidence that a U & A finding was ‘ambiguous, or that Judge
Boldt intended something other than [the text’s] apparent
meaning.’” Tulalip, 794 F.3d at 1133 (alteration in original)
(quoting Upper Skagit, 590 F.3d at 1023). This Court has
previously determined that “Judge Boldt intended something
different than the plain text of the Suquamish U & A
3 As an initial matter, we conclude there was no error in the district
court’s refusal to apply claim preclusion to the Upper Skagit’s Request for
Determination. The Upper Skagit subproceeding did not involve the same
contested waters as those at issue here; Upper Skagit involved Saratoga
Passage and Skagit Bay, waters east of Whidbey Island, while the current
subproceeding concerns Chuckanut Bay, Samish Bay, and a portion of
Padilla Bay, waters off of Bellingham Bay. See 590 F.3d at 1022. Thus,
Upper Skagit and the current subproceeding do not “arise out of the same
transactional nucleus of facts,” and the requisite identity of claims to
support the application of claim preclusion does not exist. See
Headwaters Inc.v. U.S. Forest Serv., 399 F.3d 1047, 1052 (9th Cir. 2005).
UPPER SKAGIT V. SUQUAMISH INDIAN TRIBE 9
finding.” Id.; see Upper Skagit, 590 F.3d at 1025.
Accordingly, the Muckleshoot analysis proceeds to step two.
See Tulalip, 794 F.3d at 1133 (“We adhere to that
determination and do not analyze further prong one of the
Muckleshoot analytical framework.”).
At step two, the moving party bears “the burden to show
that there was no evidence before Judge Boldt that the
Suquamish fished . . . or traveled through the contested
areas.” Id. (quoting Upper Skagit, 590 F.3d at 1023) (internal
quotation marks omitted). This analysis depends on review
of the entire record before Judge Boldt at the time of his
Suquamish U&A finding, as well as his factual findings and,
possibly, “additional evidence if it shed[s] light on the
understanding that Judge Boldt had of the geography at the
time.” Muckleshoot II, 234 F.3d at 1100; see Muckleshoot
III, 235 F.3d at 433; Muckleshoot I, 141 F.3d at 1359. The
Court may not “alter, amend, or enlarge” Judge Boldt’s U&A
finding. Muckleshoot I, 141 F.3d at 1360.
Thus, we must decide whether the moving party, the
Upper Skagit, carried its burden to show there was no
evidence before Judge Boldt that the Suquamish fished or
traveled through Chuckanut Bay, Samish Bay, and a portion
of Padilla Bay. See Tulalip, 794 F.3d at 1133. Dr. Lane’s
Suquamish-specific report and testimony are particularly
relevant to the question of the Suquamish’s U&A
determinations, see id. at 1134–36 (reviewing Dr. Lane’s
report and testimony to determine whether the Suquamish’s
U&A determinations include contested waters); Upper
Skagit, 590 F.3d at 1025 (same), but we also consider the
language Judge Boldt used in the Order to define the
Suquamish’s U&A determinations, see Upper Skagit,
UPPER SKAGIT V. SUQUAMISH 10 INDIAN TRIBE
590 F.3d at 1025. We conclude that the Upper Skagit met its
burden here.
Neither Dr. Lane’s testimony nor her reports contain any
indication that the Suquamish fished or traveled through the
Contested Waters. Rather, almost all the Suquamish fisheries
Dr. Lane identified are located on the western side of Puget
Sound, near the Kitsap Peninsula and Bainbridge Island. The
only Suquamish fisheries Dr. Lane identified on the eastern
side of Puget Sound are the Duwamish and Snohomish
Rivers, which are located considerably south of the Contested
Waters.
Dr. Lane also described that the Suquamish traveled
regularly through the San Juan Islands and to the Fraser River
and that the Suquamish “undoubtedly would have fished the
marine waters along the way.” Dr. Lane did not describe the
route the Suquamish would have taken to reach the Fraser
River from its home territory, although Dr. Lane did indicate
that the Suquamish traveled through the San Juan Islands and
then northbound through waters adjacent to Birch Bay; the
state’s attorney asked Dr. Lane whether the Suquamish fished
in the San Juan Islands and the “area off of Birch Bay on the
way up to the Fraser River,” and Dr. Lane replied, “I think
it’s entirely likely that [the Suquamish] fished for whatever
was available as they were traveling through those waters and
that they visited those waters regularly as a usual and
accustomed matter in order to fish.” In addition, in Tulalip,
this Court explained that “[w]hen traveling from Vashon
Island to the Fraser River, the Suquamish would have passed
through the waters west of Whidbey Island, and likely would
have fished there while traveling.” 794 F.3d at 1135. This
explanation, as well as Dr. Lane’s evidence that the
Suquamish regularly traveled through the San Juan Islands
UPPER SKAGIT V. SUQUAMISH INDIAN TRIBE 11
and to the Fraser River, leads us to conclude that the
Suquamish traveled through the waters west of Whidbey
Island and then proceeded directly north through the San Juan
Islands—not east to waters off of Bellingham Bay—en route
to the Fraser River.
However, during questioning by the Swinomish Tribe’s
attorney, Dr. Lane opined that it was “[p]robable that the
Indians traveling northward would travel through Hales
Passage,” which is roughly northwest of the Contested
Waters. Dr. Lane made that statement while testifying about
the Samish, Swinomish, and Lummi tribes, and she later
clarified, “I have no direct evidence of other tribes [than the
Lummi] fishing in Hales Passage at treaty times. It is my
opinion that it is quite likely that they may well have done so
with the concurrence of the Lummi people who were living
there.” Dr. Lane did not identify the Suquamish as one of
those tribes.
Absent any other indication in Dr. Lane’s report or
testimony that the Suquamish might have traveled to the
Contested Waters to fish, the “general evidence” of
northward travel through Hale Passage, which itself is merely
adjacent to the Contested Waters, is insufficient to show the
Suquamish traveled or fished through the Contested Waters.
This case is distinguishable from Tulalip, which relied on
both general and specific evidence that the Suquamish fished
and traveled through waters west of Whidbey Island. See
794 F.3d at 1135. Specifically, Tulalip held that the
Suquamish’s U&A determinations include waters west of
Whidbey Island based on specific evidence from Dr. Lane
that the Suquamish’s territory possibly included Whidbey
Island’s western side and that the Suquamish traveled to
Whidbey Island to fish, as well as on the “general evidence”
UPPER SKAGIT V. SUQUAMISH 12 INDIAN TRIBE
that “[t]he deeper saltwater areas, the Sound, the straits, and
the open sea . . . were used as fishing areas by anyone
travelling [sic] through such waters.” Id. (first and third
alterations in original). Here, by contrast, the record contains
no specific or general evidence that the Suquamish fished or
traveled through the Contested Waters.
In her testimony, Dr. Lane discussed Suquamish fisheries
in northern Puget Sound, in the area from the San Juan
Islands to the Fraser River. Neither the Suquamish nor the
state elicited any testimony from her regarding Suquamish
fisheries on the eastern side of Puget Sound. Dr. Lane’s sole
testimonial reference to northeastern Puget Sound in relation
to the Suquamish apparently excluded the tribe from waters
neighboring the Contested Waters; Dr. Lane stated that the
Suquamish, who had “their own place[s]” to fish for herring,
“would not go all the way over into Bellingham Bay in order
to get the herring that were spawning” in Lummi territory.
Dr. Lane named three sites as Suquamish herring fisheries, all
of which are off the Kitsap Peninsula’s eastern coast.
In sum, “[n]one of Dr. Lane’s testimony identified
specific areas as far” east and north as the Contested Waters.
See United States v. Lummi Indian Tribe, 235 F.3d 443, 451
(9th Cir. 2000) (finding Judge Boldt did not intend to include
contested waters in the Lummi Indian Tribe’s U&A
determinations because, in part, “[n]one of Dr. Lane’s
testimony identified specific areas as far west and south” as
the contested waters). We conclude that neither Dr. Lane’s
report nor her testimony indicates the Suquamish fished or
traveled through the Contested Waters.
Additionally, Judge Boldt’s failure to name the Contested
Waters in the Suquamish’s U&A determinations supports the
UPPER SKAGIT V. SUQUAMISH INDIAN TRIBE 13
conclusion that he did not intend to include them. See Upper
Skagit, 590 F.3d at 1025. This factor alone is not dispositive,
however, considering our holding in Tulalip that the
Suquamish’s U&A determinations include the mouth of the
Snohomish River, Possession Sound and Port Gardner Bay,
none of which Judge Boldt named in the Suquamish’s U&A
determinations. See 794 F.3d at 1134–36. But based on the
evidence before Judge Boldt, and on Dr. Lane’s report and
testimony, specifically, we conclude Judge Boldt did not
intend to include the Contested Waters in the Suquamish’s
U&A determinations. See id.; Upper Skagit, 590 F.3d at
1025.
Nevertheless, the Suquamish insists “the entire record”
does indeed indicate that Judge Boldt intended to include the
Contested Waters in the Suquamish’s U&A determinations.
These arguments are unavailing. First, the Suquamish points
to the 1975 proceedings before Judge Boldt and, in particular,
to the lack of tribal objection at that time to the entirety of the
Suquamish’s claimed U&A determinations, comprising Areas
One, Two, Three and Four on the Claim Map. However, the
law of this case belies the notion that Judge Boldt intended to
include the entirety of the Suquamish’s claimed U&A
determinations. In Upper Skagit, we concluded that Judge
Boldt did not intend for the Suquamish’s U&A
determinations to include Skagit Bay and Saratoga Passage,
which lie within Area Four of Suquamish’s claimed U&A
determinations. See 590 F.3d at 1026. In so holding, this
Court decided by necessary implication that Judge Boldt did
not intend to include the entirety of the Suquamish’s claimed
U&A determinations, and we decline to reconsider the issue.
See Lummi Indian Tribe, 235 F.3d at 452.
UPPER SKAGIT V. SUQUAMISH 14 INDIAN TRIBE
The Suquamish also contends that, by “approving”
proposed “Joint Indian Herring Roe Fishing Regulations”
(“Joint Regulations”), Judge Boldt revealed his understanding
that the Suquamish’s U&A determinations include the
Contested Waters. But the record does not state that the Joint
Regulations reflect the geographic scope of the Suquamish’s
treaty-time fishing, or that Judge Boldt considered the Joint
Regulations as such. And on their face, the Joint Regulations
appear to exclude the Suquamish from the Contested Waters.
Finally, the Suquamish claims that Judge Boldt intended
to include the Contested Waters because he recognized the
existence of a private agreement among the Suquamish,
Lummi, and Nooksack Tribes regarding Hale Passage.
However, Judge Boldt’s reference to this extrajudicial
agreement does not indicate that he intended to include Hale
Passage or, more important for this proceeding, the Contested
Waters in the Suquamish’s U&A determinations. In fact,
Judge Boldt explained that the Suquamish, Lummi, and
Nooksack Tribes, “without relinquishing any claims to
fishing locations,” had agreed “not to request a court
determination as to their relationship with each other” in Hale
Passage. Decision II, 459 F. Supp. at 1049 (emphasis added).
Therefore, we find unavailing the Suquamish’s attempts
to broaden the evidence bearing on Judge Boldt’s intent in
delineating the Suquamish’s U&A determinations. Based on
our review of the entire record before Judge Boldt, we agree
with the district court that Judge Boldt did not intend to
UPPER SKAGIT V. SUQUAMISH INDIAN TRIBE 15
include Chuckanut Bay, Samish Bay, and the portion of
Padilla Bay in the Suquamish’s U&A determinations.4

* * *

4 We deny as moot the Upper Skagit’s motion to strike from the
Excerpts of Record the Suquamish’s post-1975 fishing regulations. We
note, however, that the Suquamish’s post-1975 fishing regulations were
not part of the record before Judge Boldt. And unlike a geography
expert’s testimony, the regulations do not shed light on Judge Boldt’s
understanding of the geography at the time. Cf. Muckleshoot II, 234 F.3d
at 1100. The post-1975 fishing regulations reflect “the Suquamish’s
understanding of its own U & A,” rather than “Judge Boldt’s intent in
determining that U & A.” See Upper Skagit, 590 F.3d at 1026. At any
rate, because we do not look to the post-1975 regulations as evidence of
Judge Boldt’s intent, we deny the Upper Skagit’s motion to strike as moot.

Outcome: AFFIRMED.

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