and Submitted October 9, 2018 Seattle, Washington
from the United States District Court for the Western
District of Washington D.C. Nos. 2:17-sp-01-RSM,
2:70-cv-09213-RSM Ricardo S. Martinez, Chief Judge, Presiding
David Lees (argued), Shelton, Washington, for
Babcock (argued), Kevin Lyon, and Sharon Haensly, Shelton,
Washington, for Respondent-Appellee Squaxin Island Tribe.
Patricia Rasmussen (argued), Law Offices of Lauren P.
Rasmussen, Seattle, Washington, for Respondents-Appellees
Jamestown S'Klallam Tribe and Port Gamble S'Klallam
V. Panesko, Senior Counsel; Robert W. Ferguson, Attorney
General; Office of the Attorney General, Olympia, Washington;
for Real Party in Interest State of Washington.
Before: Richard A. Paez and Carlos T. Bea, Circuit Judges,
and C. Ashley Royal, [*] District Judge.
Matters / Fishing Rights
panel affirmed the district court's summary judgment in
favor of respondents concerning the Skokomish Tribe's
claim that it had "usual and accustomed"
("U&A") fishing rights in the Satsop River
pursuant to United States v. State of Washington,
626 F.Supp. 1405 (1984), aff'd, 764 F.2d 670
(9th Cir. 1985) ("1984 Subproceeding").
United States v. Washington, 384 F.Supp. 312 (W.D.
Wash. 1974) ("Boldt Decision"), aff'd and
remanded, 520 F.2d 676 (9th Cir. 1975), Judge Boldt
issued a permanent injunction, which granted tribal fishing
rights. It outlined the geography of the U&A locations of
all the signatory tribes. The Boldt Decision set forth rules
under which parties could invoke the court's continuing
jurisdiction in future disputes.
panel held that the Skokomish Tribe failed to abide by the
Boldt Decision's pre-filing requirements, which mandate
that parties attempt to resolve their disputes at a meet and
confer before initiating a request for determination. In
particular, the Skokomish Tribe failed to discuss the
"basis for the relief sought" under Paragraph
25(b)(1)(A) and "whether earlier rulings of the court
may have addressed or resolved the matter in issue"
under Paragraph 25(b)(1)(F). The panel held that a failure to
abide by the pre-filing requirements articulated in Paragraph
25(b) was a failure to invoke the jurisdiction of this court,
and the panel lacked the ability to proceed to the merits.
panel noted that if the Skokomish Tribe were to properly
invoke the continuing jurisdiction of the Boldt Decision,
their claims would be met with skepticism. The panel
indicated that the Skokomish Tribe attempted an end-run
around Judge Boldt's unambiguous determination of its
U&A by arguing that the 1984 Subproceeding, dealing
solely with primary fishing rights, somehow amended its
U&A to include the Satsop River. The panel further noted
that the 1984 Subproceeding had nothing to do with the
boundaries of the Skokomish Tribe's U&A.
Bea concurred, and indicated that this court should
reevaluate whether Judge Boldt's injunction has met its
objectives, and whether the district court retains continuing
Paez concurred in part and agreed that the Skokomish
Tribe's claim over the Satsop River was not supported by
the 1984 Subproceeding's holding in United States v.
State of Washington, 626 F.Supp. 1405 (W.D. Wash. 1984),
aff'd, 764 F.2d 670 (9th Cir. 1985). Judge Paez
dissented in part and disagreed with the majority's
conclusion that the court could not reach the merits of the
Skokomish Tribe's claim because of its failure to comply
with the pre-filing requirements. Judge Paez would hold that
the district court had jurisdiction, and deny the Skokomish
Tribe's claims on the merits.
called it an "ongoing saga," Makah Indian Tribe
v. Quileute Indian Tribe, 873 F.3d 1157, 1160 (9th Cir.
2017); remarked that "[w]e cannot think of a more
comprehensive and complex case than this," Upper
Skagit Indian Tribe v. Washington, 590 F.3d 1020, 1022
(9th Cir. 2010) (citation omitted); and "puzzled"
over why this "Jarndyce and Jarndyce" of an
equitable decree "remains in force at all,"
United States v. Washington, 573 F.3d 701, 709 (9th
Cir. 2009) (quoting Charles Dickens, Bleak House 3
(1853)). And yet, here we are. Forty-five years after Judge
Boldt issued an injunction in United States v.
Washington, 384 F.Supp. 312 (W.D. Wash. 1974)
("Boldt Decision"), aff'd and
remanded, 520 F.2d 676 (9th Cir. 1975), it remains in
effect. This case arises under it.
Skokomish Tribe claim that it has "usual and
accustomed" fishing rights in the Satsop River because
of this court's decision in United States v. State of
Washington, 626 F.Supp. 1405, 1487 (1984),
aff'd, 764 F.2d 670 (9th Cir. 1985)
("1984 Subproceeding"). As it happens,
that decision concerned which tribe had primary fishing
rights within an already-recognized "usual and
accustomed" (U&A) territory; it did not concern the
boundaries of the Skokomish's usual and accustomed
fishing rights at all.
Squaxin Island Tribe, the Jamestown S'Klallam Tribe, the
Port Gamble S'Klallam Tribe, and the state of Washington
dispute the Skokomish's Satsop River claim. On
cross-motions for summary judgment, the District Court for
the Western District of Washington sided against the
Skokomish and granted the respondents' motion for summary
judgment. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1854 and 1856, Isaac Stevens, then Governor of Washington
Territory, executed eleven nearly identical treaties with
Indian tribes in an area that would eventually become part of
the state of Washington. Washington v. Washington State
Commercial Passenger Fishing Vessel Ass'n, 443 U.S.
658, 666 (1979). Under the Stevens Treaties, tribes ceded
approximately sixty-four million acres of land to the United
States. Vincent Mulier, Recognizing the Full Scope of the
Right to Take Fish Under the Stevens Treaties: The History of
Fishing Rights Litigation in the Pacific Northwest, 31
Am. Indian L. Rev. 41 (2007). As consideration for such
cession, the tribes secured small reservations for themselves
and the right to take fish "in common with"
non-Native Americans at "usual and accustomed"
off-reservation locations. See, e.g., Treaty with
the S'Klallam, 1855, 12 Stat. 933.
Skokomish Tribe-along with the Jamestown S'Klallam, Lower
Elwha, and Port Gamble S'Klallam tribes-signed the Treaty
of Point No Point with Governor Stevens in 1855.
Id. The Skokomish Tribe is primarily comprised
of descendants of the Twana Tribe who, prior to treaty times,
controlled the territory encompassed by the Hood Canal and
its associated waterways. As with all of the Stevens
Treaties, the Treaty of Point No Point stated that
"[t]he right of taking fish at usual and accustomed
grounds and stations is further secured to said Indians, in
common with all citizens of the United States. . . ."
"[t]he rapid white settlement in the Pacific
Northwest" after the signing of the Stevens Treaties
immediately interfered with "Indian attempts to fish at
off-reservation sites." Donald L. Parman, Inconstant
Advocacy: The Erosion of Indian Fishing Rights in the Pacific
Northwest, 53 Pacific Hist. Rev. 163, 166 (1984). In the
century that followed, the state of Washington enacted
legislation and enforced fishing regulations in a manner
detrimental to the tribes' fishing rights. See,
e.g., Wash. Sess. Laws Ch. 247, Sec. 2 (1907); Init.
Measure No. 77, State of Wash. Voting Pamphlet 5 (Nov. 6,
1934). As a result, the Indians' share of the overall
catch in off-reservation sites plummeted. By 1958, for
instance, Indian fishing accounted for 6% of the total salmon
catch in the Puget Sound, while sports fishing accounted for
8.5% and commercial fishing accounted for 85.5%. United
States v. Washington, 853 F.3d 946, 957 (9th Cir. 2017).
between the tribes and the state of Washington intensified in
the 1960s. Emboldened by the civil rights movement, more than
fifty tribes organized a series of "fish- ins" in
1964. Bradley G. Shreve, From Time Immemorial: The
Fish-In Movement and the Rise of Intertribal Activism,
78 Pacific Hist. Rev. 403, 415 (2009). The
"fish-ins"- which made national news when the actor
Marlon Brando was arrested for fishing with a drift net in
the Puyallup River-were accompanied by a march on the state
capital and a series of protests. Hunter S. Thompson,
Marlon Brando and the Indian Fish-In, National
Observer, March 9, 1964. The tribes sought to enforce the
Stevens Treaties guarantee of their "right of taking
fish" in their "usually and accustomed
grounds." The state of Washington argued that its
fishing regulations were a proper exercise of its police
federal government filed suit on behalf of the tribes in
1970, and the ensuing litigation culminated in the Boldt
Decision. Issued after nearly four years of litigation, the
Boldt Decision held that the language "in common
with" granted the tribes fifty percent of the
harvestable number of fish in their "usual and
accustomed" fishing grounds. Boldt Decision,
It defined "usual and accustomed" as "every
fishing location where members of a tribe customarily fished
from time to time at and before treaty times . . . ."
Id. at 332. Then, relying on considerable historical
and anthropological evidence, it outlined the geography of
the usual and accustomed (U&A) locations of all the
signatory tribes. Id. at 332-33.
U&A of the Skokomish Tribe was announced in six
paragraphs of the Boldt Decision that detailed the lineage,
history, and customs of the tribe. Id. at 376-77.
The court described the geographic boundaries of the
Skokomish U&A 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
Id. at 377. The Skokomish admit there was no
ambiguity in Judge Boldt's determination.
here, Judge Boldt also issued a permanent injunction,
articulating rules under which parties could invoke the
court's continuing jurisdiction in future disputes.
Id. at 419. Under Paragraph 25(a), later modified by
an August 23, 1993 Order (Case No. 70-9213, Dkt. # 13599),
parties are authorized to invoke the continuing jurisdiction
of the court to determine:
(1) Whether or not the actions intended or effected by any
party (including the party seeking a determination) are in