USA, et al v. State of Washington, et al

Filing 21555

ORDER granting S'Klallam's 21495 Motion to Dismiss or in the Alternative Motion for Summary Judgment (Dkt. 21 in Subproceeding) ; granting Squaxin's 21498 Motion to Dismiss Skokomish Indian Tribe's Request for Determination (Dkt. 23 in Subproceeding ); denying Skokomish Indian Tribe's 21513 Cross-Motion for Summary Judgment (Dkt. 32 in Subproceeding) ; denying as moot Skokomish Indian Tribes' 21494 Motion for Order to Stay (Dkt. 19 in Subproceeding) ; This case is dismissed with prejudice and is now CLOSED. Signed by Judge Ricardo S Martinez.In re Sub-proceeding No. 2:17-sp-001-RSM. (SWT)

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7
8

UNITED STATES OF AMERICA, et al.,

9
10
11

Plaintiffs,

Sub-proceeding No. 17-sp-01

v.
STATE OF WASHINGTON, et al.,

12

Case No. C70-9213

Defendants.

13

ORDER GRANTING S’KLALLAM AND
SQUAXIN ISLAND TRIBES’ MOTIONS
FOR SUMMARY JUDGMENT AND
DENYING SKOKOMISH INDIAN
TRIBE’S CROSS-MOTION FOR
SUMMARY JUDGMENT

14
15

I.

16
17

INTRODUCTION

This matter comes before the Court on the Jamestown S’Klallam and Port Gamble
S’Klallam Tribes’ (collectively “S’Klallam”) and Squaxin Island Tribe’s (“Squaxin”) motions

18
19
20
21

to dismiss, or in the alternative, for summary judgment, and Skokomish Indian Tribe’s
(“Skokomish”) cross-motion for summary judgment. Dkts. #21, #23 and #32.1 In addition,
the Court resolves what remains of Skokomish’s motion to stay the proceedings. Dkt. #19.

22
23
24
25

1

These filings appear at Dkts. #21495, #21498 and #21513 in the main case, USA v.
Washington, C70-9213RSM. For ease of reference, the Court will cite only to the
subproceeding docket number in the body of this Order, unless it is citing to filings in a
different proceeding.

26

ORDER -1

S’Klallam requests that the Court grant it summary judgment on three bases: 1) the

1
2

Skokomish request for determination is procedurally improper because the Skokomish fail to

3

allege which jurisdictional provision they invoke; 2) the Skokomish request is legally invalid

4

because it violates a settlement agreement: The Hood Canal Agreement; and 3) the Court has

5

previously determined, unambiguously, that the Skokomish U&A is the Hood Canal and its

6

drainage basin, and therefore it is not entitled to any ruling that it has primary fishing rights

7
8
9

outside of that established U&A. Dkt. #21 at 3-5. The Squaxin move for summary judgment
on essentially the same bases, albeit with slightly different legal arguments, and include an

10

additional argument for dismissal on the basis that Skokomish failed to follow the pre-filing

11

requirements established by this Court. Dkt. #23.2

12
13
14

Skokomish have opposed the S’Klallam and Squaxin motions and also move for
summary judgment in their favor. Dkt. #32. Skokomish assert that they have complied with
all pre-filing requirements and have appropriately asserted jurisdiction over this matter, and

15
16
17
18

argue that both this Court and the Ninth Circuit Court of Appeals have already determined that
their U&A and primary fishing right extend beyond the Hood Canal and its drainage basin. Id.
Accordingly, they assert that summary judgment in their favor is appropriate.

19

The matter having been fully briefed, and having determined that oral argument is not

20

necessary in this matter, the Court now GRANTS S’Klallam’s and Squaxin’s motions for

21
22
23
24
25
26

2

The Swinomish Indian Tribal Community (“Swinomish”) and the State of Washington
support dismissal of the Skokomish Request for Determination on the bases argued by
S’Klallam and Squaxin, and oppose Skokomish’s cross-motion for summary judgment. Dkts.
#31 and #38.

ORDER -2

1
2

summary judgment for the reasons set forth herein, and DENIES Skokomish’s cross-motion
for summary judgment.
II.

3

BACKGROUND

4

On April 27, 2017, Skokomish filed an ex parte Motion for Leave to File a New

5

Subproceeding. Dkt. #1. The motion was granted, and Skokomish filed their Request for

6

Determination (“RFD”) in this matter. Dkts. #2 and #3. In their RFD, Skokomish seek the

7
8

following relief:
(A) An Order confirming the Skokomish Indian Tribe’s right to take fish and
to exercise Skokomish’s primary right within those portions of
Skokomish (or Twana) Territory lying outside of the Hood Canal
Drainage Basin; and

9
10
11

(B) A preliminary and permanent injunction prohibiting interference with the
Skokomish Indian Tribe’s right to take fish and to exercise Skokomish’s
primary right within those portions of Skokomish (or Twana) Territory
lying outside of the Hood Canal Drainage Basin . . . .

12
13
14

Dkt. #3 at 8.

15

After the Court issued its Order Regarding Initial Disclosures and Joint Status Report,

16
17

the parties engaged in a Rule 26(f) conference. During that conference, Skokomish was

18

informed that some parties planned to file motions to dismiss for failure to follow pre-filing

19

requirements and for lack of jurisdiction. See Dkt. #19. Accordingly, on May 31, 2017,

20

Skokomish filed a motion requesting a stay of the deadlines set forth in the Court’s Order

21
22

Regarding Initial Disclosures and Joint Status Report, and asking the Court to direct the parties
to return to mediation. Id.

23

On June 2, 2017, the Court held a telephonic status conference to discuss the motion

24
25

made by Skokomish. Ultimately, the Court stayed the pending initial disclosures and joint

26

ORDER -3

1
2

status report headlines, but deferred any ruling on whether the parties should return to
mediation. Dkt. #20.
The current motions to dismiss, or alternatively for summary judgment, followed and

3
4

are now ripe for review.

5
6

III.

DISCUSSION

A. Legal Standards

7

1. Motions to Dismiss Under 12(b)(6)

8

S’Klallam and Squaxin initially bring their motions pursuant to Federal Rule of Civil

9
10

Procedure 12(b)(6) for Plaintiff’s failure to state a claim upon which relief may be granted. On

11

a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material

12

fact must be accepted as true and construed in the light most favorable to the nonmoving party.

13
14

Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, the Court is
not required to accept as true a “legal conclusion couched as a factual allegation.” Ashcroft v.

15
16
17

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). The Complaint “must contain sufficient factual matter, accepted as true, to state a

18

claim to relief that is plausible on its face.” Id. at 678. This requirement is met when the

19

plaintiff “pleads factual content that allows the court to draw the reasonable inference that the

20

defendant is liable for the misconduct alleged.” Id. Absent facial plausibility, a plaintiff’s

21

claims must be dismissed. Twombly, 550 U.S. at 570.

22

The Court typically limits its Rule 12(b)(6) review to allegations set forth in the

23
24
25

Complaint. Here, all parties request that the Court examine documents outside the Complaint,
and have moved for summary judgment in the alternative. Although the Court recognizes that

26

ORDER -4

1

it can take judicial notice of most of the offered documents, in an abundance of caution the

2

Court converts these motions to ones for summary judgment, and will analyze them under the

3

applicable summary judgment standard.

4

2. Motions for Summary Judgment

5

Summary judgment is appropriate where “the movant shows that there is no genuine

6

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

7
8
9

R. Civ. P. 56(a), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

In ruling on

summary judgment, a court does not weigh evidence to determine the truth of the matter, but

10

“only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d

11

547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Meyers, 969 F.2d

12

744, 747 (9th Cir. 1992)). Material facts are those which might affect the outcome of the suit

13

under governing law. Anderson, 477 U.S. at 248.

14

The Court must draw all reasonable inferences in favor of the non-moving party. See

15
16
17

O’Melveny & Meyers, 969 F.2d at 747, rev’d on other grounds, 512 U.S. 79 (1994). However,
the nonmoving party must make a “sufficient showing on an essential element of her case with

18

respect to which she has the burden of proof” to survive summary judgment. Celotex Corp. v.

19

Catrett, 477 U.S. 317, 323 (1986). Further, “[t]he mere existence of a scintilla of evidence in

20

support of the plaintiff’s position will be insufficient; there must be evidence on which the jury

21

could reasonably find for the plaintiff.” Anderson, 477 U.S. at 251.

22

The parties have cross-moved for summary judgment. However, cross motions for

23
24
25

summary judgment do not warrant the conclusion that one of the motions must be granted.
The Court must still determine whether summary judgment for either party is appropriate. See

26

ORDER -5

1
2
3

Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136-1137
(9th Cir. 2001).
B. Alleged Pre-Filing Deficiencies

4

As an initial matter, the Court addresses Squaxin’s argument that this Court lacks

5

jurisdiction over the Skokomish Request for Determination (“RFD”) because they failed to

6

comply with the pre-filing requirements.

Dkts. #23 at 11-2.

Prior to bringing new

7
8
9
10

subproceedings in this matter, parties must comply with Paragraph (b) of Final Decision #1,
384 F. Supp. at 419, as modified by this Court’s August 23, 1993 Order Modifying Paragraph
25 of Permanent Injunction (Case No. 70-9213, Dkt. #13599). That Order provides:
To invoke this court’s continuing jurisdiction, the party seeking relief
shall initiate a subproceeding in this action by filing a request for
determination. Subproceedings will be conducted in accordance with the
following procedures:

11
12
13

(1) Before a request for determination is filed . . ., the party
seeking relief (“requesting party”) shall meet and confer with all parties
that may be directly affected by the request (“affected party”) and attempt
to negotiate a settlement of the matter in issue. . . . In addition to other
matters the parties may wish to address, the parties shall discuss at the
meeting (A) the basis for the relief sought by the requesting party; (B) the
possibility of settlement; (C) whether the matter is properly one for the
Fisheries Advisory Board (FAB); (D) identification of technical issues
relevant to the matter in controversy, areas of agreement and
disagreement on such issues, and methods for developing an agreed
technical basis to narrow or resolve the controversy; (E) whether
independent extra-judicial actions . . . may remove the need for or warrant
deferral of an adjudication; (F) whether earlier rulings of the court may
have addressed or resolved the matter in issue in whole or in part; and (G)
whether the parties can agree to mediation or arbitration of the issues
before or in lieu of litigation. The parties shall continue to meet and
negotiate as long as there appears to them to be a substantial possibility
of settlement. . . .

14
15
16
17
18
19
20
21
22
23
24
25

Case No. 70-9213, Dkt. #13599 at 2-4.

26

ORDER -6

Squaxin argues that Skokomish’s meet and confer and mediation did not conform to

1
2

the requirements of ¶ 25(b)(1) in several ways. First, Squaxin asserts that Skokomish, during

3

the meet and confer, “at best” stated an intent to adjudicate this matter under ¶ 25(a)(6)

4

regarding an additional U&A and a primary fishing right in the “entire Satsop Fishery”. Dkt.

5

#23 at 11. However, in contrast to that position, Squaxin notes that Skokomish now seeks a

6

determination through its RFD of a much larger U&A and a primary fishing right in all or part

7
8
9

of the “entire Satsop Fishery” and in the southwestern Puget Sound inlets and the freshwaters
that flow into them where Squaxin has adjudicated U&A. Id. Squaxin asserts those areas were

10

never discussed at the meet and confer.

11

differences exist between the “matter in issue” as presented at the meet and confer and the

12

RFD, namely (1) the geographic area where Skokomish asserts previously adjudicated U&A

13
14

Accordingly, Squaxin argues that significant

and primary fishing rights, and (2) the kind of relief it seeks – i.e., confirmation of previously
adjudicated rights, as opposed to a declaration of additional U&A under ¶ 25(a)(6) and a

15
16

primary fishing right that had never been litigated. Id.
Second, Squaxin argues that ¶ 25(b)(1)(F) requires that Skokomish have “discuss[ed]”

17
18

at the meet and confer “whether earlier rulings of the court may have addressed or resolved in

19

the matter in issue in whole or in part”. Dkt. #23 at 12. Squaxin asserts that Skokomish did

20

not discuss at the meet and confer its current claim that it possesses previously adjudicated

21
22

U&A and a primary fishing right outside of Hood Canal. Id. Squaxin further asserts that
Skokomish did not mention its interpretation of the Court’s 1984 decision until March 9, 2017,

23
24

well after it had concluded the meet and confer and mediation. Id.

25
26

ORDER -7

Finally, Squaxin argues that Skokomish violated ¶ 25(b)(1)(A)’s requirement that the

1
2

parties “discuss” at the meet and confer “the basis for the relief sought by the requesting party.”

3

Dkt. #23 at 12. Squaxin asserts that at the meet and confer, Skokomish generally described

4

some anthropological and historical evidence that it intended to use to support its claim to

5

U&A and primary fishing rights in the entire Satsop Fishery, but did not take the position that

6

it would seek the Court’s continuing jurisdiction to confirm that the “entire Satsop Fishery”,

7
8
9

much less all of the area described in George Gibbs’ journal (Finding of Fact #353), had
previously been adjudicated as Skokomish U&A with a primary fishing right.3 Id.

10

Skokomish responds that it satisfied the pre-filing requirements. Dkt. #32 at 16-21.

11

Skokomish notes that a meet and confer was held on November 4, 2015, followed by a

12

mediation (demanded by Skokomish) that took place on April 28-29, 2016. Dkt. #32 at 16.

13
14

Further, on April 29, 2016, Skokomish agreed to keep mediation open until July 31, 2016, to
further consider “requests, comments and questions.”4 Id. Skokomish asserts that if no

15
16

settlement could be reached by July 31, 2016, then commencing August 1, 2016, it was free to

17
18
19

3

In its Answer to the RFD, the State of Washington states “[t]he Skokomish Tribe’s Request
for Determination (RFD) appears to rely on a completely different legal theory than what had
been presented at the Meet and Confer.” Dkt. #27 at 2.

20
4

21
22
23
24
25
26

Skokomish have cited to at least one exhibit, an email dated June 14, 2016 at 1:25 pm,
without providing a copy of that email to the Court through a Declaration or otherwise, and
without citing to any specific docket number where it might appear elsewhere in the record.
See Dkt. #32 at 16. Accordingly, the Court is unable to consider that exhibit. Further,
Skokomish cite to other emails without identifying specifically where they appear in the
record, i.e., an email dated August 5, 2016 at 8:55 a.m., although the Court has managed to
locate it. The Court does not appreciate the assumption that it will scour a docket containing
tens of thousands of documents in an effort to locate certain exhibits, and reminds Skokomish
of its obligation under Federal Rule of Civil Procedure 56(a) to support motions for summary
judgment with specific citations to the record.

ORDER -8

1

file a Request for Determination, which it did. Id. On August 5, 2016, Skokomish wrote to

2

the mediator and counsel stating that because no settlement had been reached, it intended to

3

file a Request for Determination, the scope of which had been “modified . . . based on the

4

comments and legal concerns raised by parties to US v. Washington and other Indian tribes.”

5

Dkt. #23-3, Ex. 13. Skokomish did not explain how the scope had been modified. Id.

6

The Court does not agree with Skokomish that these actions are “entirely consistent

7
8
9

with the principals espoused in Paragraph 25(b).” See Dkt. #32 at 17. As Squaxin points out,
these procedures require the parties to negotiate and mediate issues in a meaningful way, and

10

to seriously explore the potential for compromise, before initiating a formal proceeding. Dkt.

11

#23 at 11. It should be very clear to the parties by now that these procedures are intended to

12

reduce litigation, conserve the Court’s and the parties’ resources, and make subproceedings

13
14

more efficient and manageable by narrowing inter-party disputes. While, Skokomish argues
that the parties were well aware of its position now raised in the instant proceedings, primarily

15
16
17

referring to arguments made in other cases, it also acknowledges that it modified the scope of
its RFD after mediation was completed. This “modification” was clearly different than what

18

was actually discussed at the meet and confer, and defeats the purpose of any meaningful

19

attempt to resolve the issue amongst the tribes. As a result, the Court agrees that Skokomish

20

failed to follow the pre-filing procedures prior to filing the instant suit, and the Court could

21
22

dismiss this matter on that basis. However, as further discussed below, there are additional
reasons for dismissal.

23
24
25

///
///

26

ORDER -9

1

C. Lack of Jurisdiction Under Paragraph 25

2

S’Klallam and Squaxin argue that this Court lacks jurisdiction to hear Skokomish’s

3

RFD because Skokomish fail to invoke jurisdiction under any specific subsection of Paragraph

4

25(a). Dkts. #21 and #23. Instead, Skokomish initiated this subproceeding through an RFD

5

that generally invokes Paragraphs 25(a)(1)-(a)(7) of Final Decision #1, 384 F. Supp. at 419, as

6

modified by this Court’s August 23, 1993 Order Modifying Paragraph 25 of Permanent

7
8
9

Injunction (Case No. 70-9213, Dkt. #13599). See Dkt. # 3 at ¶ 3.12. Skokomish makes no
effort to identify which of these subparagraphs provides jurisdiction over the relief it seeks.
Paragraph 25 of the Permanent Injunction, as modified, instructs the parties as follows:

10

25. (a) The parties or any of them may invoke the continuing jurisdiction
of this court in order to determine:

11
12

(1) Whether or not the actions intended or effected by any party
(including the party seeking a determination) are in conformity with Final
Decision #1 or this injunction;

13
14

(2) Whether a proposed state regulation is reasonable and
necessary for conservation;

15
16

(3) Whether a tribe is entitled to exercise powers of selfregulation;

17
18

(4) Disputes concerning the subject matter of this case which the
parties have been unable to resolve among themselves;

19
20

(5) Claims to returns of seized or damaged fishing gear or its
value, as provided for in this injunction;

21

(6) The location of any of a tribe’s usual and accustomed fishing
grounds not specifically determined by Final Decision #1; and

22
23

(7) Such other matters as the court may deem appropriate.

24
25
26

ORDER -10

1

Case No. 70-9213, Dkt. #13599 at 1-2. Skokomish’s RFD does not implicate matters under

2

25(a)(2), (a)(3) or (a)(5), therefore those subsections cannot confer continuing jurisdiction in

3

this Court. Skokomish oddly states, “[t]he Request for Determination is correctly brought

4

pursuant to Paragraphs (a)(1) through 25(a)(7), as the participants cannot agree on the

5

applicability of any one subsection.” Dkt. #32 at 21. Even if that was accurate with respect to

6

the parties’ agreement or disagreement as to which subsection invoked jurisdiction, it is of no

7
8
9

import. It is Skokomish’s burden, as the filing party, to identify the basis of jurisdiction.
Skokomish fails to do so.

10

Moreover, Skokomish’s reliance on other general bases for federal jurisdiction does

11

not salvage their position. They have filed a RFD pursuant to this Court’s continuing

12

jurisdiction as set forth in the injunction issued by Judge Boldt more than 40 years ago. To

13
14

take advantage of that continuing jurisdiction, Skokomish must comply with Paragraph 25 of
Final Decision #1 as modified by this Court’s August 23, 1993 Order Modifying Paragraph 25

15
16
17

of Permanent Injunction. Case No. 70-9213, Dkt. #13599. That includes identifying a specific
basis of jurisdiction. On Reply in support of their cross-motion for summary judgment,

18

Skokomish suggests that either 25(a)(1) or 25(a)(6) are the appropriate bases for jurisdiction.

19

See Dkts. #32 and #41. Setting aside that this Court is not required to guess at the asserted

20

basis for jurisdiction, it will assume for the sake of argument that Skokomish adequately

21

pleaded these subsections.

22

Paragraph 25(a)(1) provides the Court with jurisdiction to determine whether actions

23
24
25

by a party are in conformity with Judge Boldt’s findings in Final Decision # 1. While Paragraph
25(a)(1) jurisdiction comes into play where there is potential ambiguity in Judge Boldt’s

26

ORDER -11

1

findings, Paragraph 25(a)(6) provides jurisdiction to resolve “the location of any of a tribe’s

2

usual and accustomed fishing grounds [(“U&A”)] not specifically determined by Final

3

Decision # 1.” Paragraph 25(a)(6) jurisdiction is thus contingent on the Court’s finding, or the

4

parties agreeing, that the disputed waters in question were not specifically determined by Judge

5

Boldt. For the reasons discussed below, neither of these subparagraphs confer jurisdiction over

6

the RFD because there is no ambiguity in Judge Boldt’s determination of the Skokomish U&A,

7
8
9
10

and the scope of that U&A has been determined in a manner contrary to the assertions now
made by Skokomish.
D. Skokomish U&A and Primary Right
As noted above, Skokomish have asked the Court for:

11
12

(A) An Order confirming the Skokomish Indian Tribe’s right to take fish
and to exercise Skokomish’s primary right within those portions of
Skokomish (or Twana) Territory lying outside of the Hood Canal
Drainage Basin; and

13
14

(B) A preliminary and permanent injunction prohibiting interference with
the Skokomish Indian Tribe’s right to take fish and to exercise
Skokomish’s primary right within those portions of Skokomish (or
Twana) Territory lying outside of the Hood Canal Drainage Basin . .
..

15
16
17
18

Dkt. #3 at 8. Thus, the Court finds it appropriate to proceed initially under Paragraph 25(a)(1)

19
20

in order to determine whether the waters “lying outside of the Hood Canal Drainage Basin”

21

have already been determined to be part of Skokomish’s U&A, as described by Judge Boldt in

22

Findings of Fact 137 in Final Decision # 1. Only if that question cannot be resolved by looking

23

at the record before Judge Boldt, and should the Court find that Skokomish’s U&A in question

24

was not specifically determined in Final Decision # 1, would it be appropriate to turn to

25

Paragraph 25(a)(6) for further proceedings.

26

ORDER -12

Judge Boldt’s original court decision regarding the Skokomishs U&A, found in Finding

1
2

of Fact 137, provides as follows:
The usual and accustomed fishing places of the Skokomish Indians
before, during and after treaty times included all the waterways draining
into Hood Canal and the Canal itself.

3
4
5
6

United States v. Washington, 384 F. Supp. 312, 377 (1974). There is no ambiguity in that
decision.5 However, Skokomish argue that its U&A was further defined as part of a 1984

7
8
9

subproceeding before United States District Judge Craig, and rely on that alleged expanded
scope of their U&A to support their instant RFP and request for summary judgment. Dkt. #32.

10

On March 22, 1984, Judge Craig issued an “Order Adopting the Special Master’s

11

Report and Recommendation Re Skokomish Indian Tribe’s Request for Determination of

12

Primary Right in Hood Canal Fishery.” 626 F. Supp. 1405, 1486 (W.D. Wash. 1984), aff’d

13

764 F.2d 670 (9th Cir. 1985). In that Order, Judge Craig found that:

14

The Skokomish Indian Tribe holds the primary right to take fish in Hood
Canal and on all rivers and streams draining into Hood Canal south of the
line displayed on Exhibit A (attached to Special Master’s Report and
Recommendation, etc.) commencing on the west shore of Hood Canal at
Termination Point and following the course of the Hood Canal Floating
Bridge to the east shore of the canal.

15
16
17
18

Id. at 1486-87. In reaching that conclusion, Judge Craig “fully” adopted the Findings of Fact

19
20
21

in the Special Master’s Report and Recommendation. Id. at 1487. One such Finding of Fact
provided:
In his 1854-55 journal, George Gibbs, a lawyer, ethnographer and
secretary to the 1855 Treaty Commission, described Skokomish (or
Twana) territory as:

22
23
24
5

25
26

Skokomish agree that there is no ambiguity in the scope of their U&A, but focus on their
1984 primary right subproceeding rather than on Judge Boldt’s decision. Dkt. #32 at 4. For
the reasons discussed herein, that focus is misplaced.

ORDER -13

1

Extend[ing] from Wilkes’ Portage northwest across to the arm
of Hood Canal up to the old limits of the Tchimakum, thence
westerly to the summit of the Coast Range, thence southerly to
the head of the west branch of the Satsop, down that branch to
the main fork, thence east to the summit of the Black Hills, then
north and east to the place of beginning.

2
3
4
5

10

(Tr. at Hearing, p. 29-30.) Gibbs’ description of Twana territory
embraces Hood Canal and its drainage basin northward along the canal to
the point on the west shore now known as Termination Point, which was
the southern limit of the Tchimakum shown on a map prepared by Gibbs
in 1856. (Ex. SK-SM-4; see also Ex. SK-SM-5 for contemporary names).
Gibbs’ description of Twana territory was based on information gathered
from Indians at and before the treaty councils and at contemporaneous
meetings. The Court finds it to be the best available evidence of treatytime locations of Twana territory.

11

626 F. Supp. at 1489. Skokomish asserts that there is no ambiguity in that determination and

12

asserts that Judge Craig, in adopting the Finding of Fact, thereby determined that its U&A

6
7
8
9

13
14

encompassed the entire area described by Mr. Gibbs. Dkt. #32. In further support of their
position, Skokomish point to an Order referring the matter to the Special Master for “the issue

15
16
17

of determining the ‘usual and accustomed fishing grounds’ of the Skokomish Tribe,” as
evidence that Judge Craig ultimately expanded their U&A to the area described by Mr. Gibbs.

18

Dkt. #32 at 1-2. As a result, Skokomish now argue that they are entitled to the relief they seek

19

through the current RFD, and that all other parties are precluded from challenging such a

20

finding. Dkt. #32. The Court disagrees.

21
22

As an initial matter, Skokomish has blatantly misrepresented the record in the 1984
subproceeding.6 Skokomish rely heavily on Judge Craig’s Order referring the subproceeding

23
24
25
26

6

That misrepresentation has caused this Court to consider sanctions, as further discussed
below.

ORDER -14

1

to a Special Master, arguing that the purpose of the referral was to determine the scope of its

2

U&A, as demonstrated by the language of Order of referral. Dkt. #32 at 9. However,

3

Skokomish ignore that the Order of reference upon which they rely was expressly amended to

4

make clear that the Skokomish U&A was not at issue in that subproceeding; rather, the

5

subproceeding was to determine whether Skokomish had a primary right in the Hood Canal

6

and its drainage basin – the very U&A defined by Judge Boldt. Dkt. #23-3, Ex. 9. The

7
8

amended Order stated:
The court has previously made an Order of Reference to the Special
Master to determine usual and accustomed fishing grounds of the
Skokomish Indian Tribe. It appears that the request of the tribe was
for determination of the primary right of Skokomish Indian Tribe in
Hood Canal Fishery. The previous Order of Reference to the Special
Master is therefore amended to cover the determination of this
request.

9
10
11
12
13

Id. (emphasis added).

14

Moreover, the RFD filed in the 1984 subproceeding expressly stated that Skokomish

15
16
17

were seeking a resolution of whether it had a primary right in the U&A already determined by
Judge Boldt. Dkt. #22, Ex. F. That context is important. The subproceeding simply did not

18

adjudicate the scope of the Skokomish U&A. Indeed, Judge Boldt’s original ruling establishes

19

the standard for what a tribe must demonstrate to prove off-reservation fishing rights at usual

20

and accustomed grounds and stations. A tribe must provide evidence of fishing grounds where

21
22

its members “customarily fished from time to time at and before treaty times, however distant
from the then usual habitat of the tribe . . . .” United States v. Washington, 384 F. Supp. 312,

23
24
25

332 (1974). The phrase “usual and accustomed” applies in a restrictive sense and does not
apply to sites used only occasionally or incidentally. Id. at 356. As the State of Washington

26

ORDER -15

1

points out, Mr. Gibbs’ description of Twana territory did not identify or discuss any locations

2

where fishing occurred. Further, Skokomish cite no legal authority for their assertion that Mr.

3

Gibbs’ reference to Twana “territory” – by itself and without supporting evidence of regular

4

and customary fishing practices at identified locations – satisfies the standard to establish

5

additional U&A. See Dkt. #38.

6

Having reviewed all of the arguments made by S’Klallam and Squaxin in their motions

7
8
9

for summary judgment, as well as those of the other supporting Tribes and the State of
Washington, the Court agrees that Judge Boldt’s determination of the Skokomish U&A was

10

unambiguous, and that the 1984 subproceeding neither changed that determination nor

11

expanded it. Accordingly, the Court rejects the arguments by Skokomish that any party is

12

precluded from challenging the scope of the U&A Skokomish now asserts. Further, the Court

13
14

finds it unnecessary to specifically address whether the RFD filed in the instant subproceeding
is precluded by the Hood Canal Agreement. See Dkt. #21. Likewise, because Judge Boldt’s

15
16
17
18

original determination is not ambiguous, there is no need to engage in a Paragraph 26(a)(6)
analysis. The RFD will be dismissed with prejudice for all of the reasons above.
E. Sanctions

19

Although not specifically requested by the S’Klallam and Squaxin, the Court has

20

considered whether sanctions are appropriate against Skokomish for bringing this matter. The

21
22

Court is concerned with the way Skokomish presented the record of the underlying proceedings
in an attempt to support their legal claims and circumvent jurisdictional issues in this

23
24
25

proceeding. What the Court finds particularly egregious is the fact that Skokomish not only
misrepresented what the Special Master was tasked with reviewing, but that even after several

26

ORDER -16

1

parties pointed out the Order Skokomish relied on had been amended to clarify the nature of

2

the subproceeding, Skokomish failed to correct the record, and indeed failed to acknowledge

3

their misrepresentation at all. See Dkt. #41.

4

There are serious ramifications for this conduct, as it greatly affects the way this Court

5

views its ongoing jurisdiction over these matters. For 40 years this Court has interpreted Judge

6

Boldt’s findings, and there are questions as to how many genuine disputes actually remain. As

7
8

this Court has noted in other Orders:
. . . Judge Andrew Kleinfeld eloquently stated in his dissent from the
amended opinion filed in the dispute between the upper Skagit Indian
Tribe and the Suquamish Indian Tribe (Subproceeding 05-03),

9
10

Continually revisiting Judge Boldt’s decades-old opinions (and
the limited record supporting them) in an attempt to discern what
he thought the customs of multiple peoples were in the 1850’s
and earlier, besides being extremely burdensome and expensive,
is a fundamentally futile undertaking. The truth is not knowable.
“This exercise is not law, and is not a reliable way to find facts,
so it is hard to see why courts are doing it and how it could be
preferable to the Indian tribes working some dispute resolution
system out for themselves.”

11
12
13
14
15
16
17

United States v. Washington, 20 F. Supp.3d 899, 986 (W.D. Wash. Dec. 5, 2012) (citations

18

omitted). Bringing disputes such as the instant one, where the filing party has failed to engage

19

in the proper pre-filing requirements, has failed to identify the basis for continuing jurisdiction,

20

and has misrepresented the record in what appears to be an attempt to circumvent the

21
22

limitations of this Court’s continuing jurisdiction, only bolsters the idea that perhaps the sun
has set on Judge Boldt’s injunction and this Court’s continuing jurisdiction under it.

23

Ultimately, the Court will not order sanctions here. However, Skokomish, and in fact

24
25

all of the Tribes, are reminded that their actions may ultimately be the impetus for the

26

ORDER -17

1

dissolution of any oversight by this Court. This reminder should be the driving force behind

2

real efforts to resolve matters without Court intervention, and motivation to engage in genuine

3

attempts to resolve conflicts without asking the Court to do so for them. Time and time again,

4

this Court has stated that the Tribes are in the best position to craft agreements that will

5

adequately meet their needs. This matter is no different.

6

IV.

CONCLUSION

7

Having reviewed the parties’ motions, the briefs in opposition thereto and in support

8
9
10

thereof, along with the Declarations and Exhibits and the remainder of the record, the Court
hereby finds and ORDERS:
1. S’Klallam’s Motion to Dismiss or in the Alternative Motion for Summary

11
12

Judgment (Dkt. #21) is GRANTED for the reasons set forth above.7

13

2. Squaxin’s Motion to Dismiss Skokomish Indian Tribe’s Request for

14

Determination Or, In the Alternative, Motion for Summary Judgment (Dkt. #23)

15

is GRANTED for the reasons set forth above.8

16

3. Skokomish Indian Tribe’s Cross-Motion for Summary Judgment (Dkt. #32) is

17

DENIED.9 This case is dismissed with prejudice and is now CLOSED.

18

4. Skokomish Indian Tribes’ Motion for Order to Stay (Dkt. #19), what remains of

19
20

it, is DENIED AS MOOT.10

21
22

Dkt. #21495 in the main case, USA v. Washington, C70-9213RSM.

8

Dkt. #21498 in the main case, USA v. Washington, C70-9213RSM.

9

23

7

Dkt. #21513 in the main case, USA v. Washington, C70-9213RSM.

24
25
26

10

Dkt. #21494 in the main case, USA v. Washington, C70-9213RSM.

ORDER -18

DATED this 30th day of August 2017.

1
2

A

3

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

ORDER -19