and Submitted October 22, 2019 Seattle, Washington
from the United States District Court for the Western
District of Washington D.C. No. 2:17-sp-00002-RSM Ricardo S.
Martinez, District Judge, Presiding
R. West (argued), Donald B. Scaramastra, and Margaret A.
Duncan, Garvey Schubert Barer, P.C., Seattle, Washington;
Richard Reich, Robert L. Otsea, Jr., Laura Weeks, and Ann E.
Tweedy, Office of the Tribal Attorney, Muckleshoot Indian
Tribe, Auburn, Washington; for Plaintiff-Appellant.
D. Morisset, Morisset, Schlosser, Jozwiak, and Somerville,
Seattle, Washington, for Respondent-Appellee Tulalip Tribes.
W. Ogan (argued), Law Office of John W. Ogan, Sisters,
Oregon; James Rittenhouse Bellis, Office of Suquamish Tribal
Attorney, Suquamish, Washington; for Respondent-Appellee
Suquamish Indian Tribe.
J. Stiltner and John Howard Bell, Law Office, Puyallup Tribe,
Tacoma, Washington, for Respondent-Appellee Puyallup Tribe.
Haensly, David Babcock, and Kevin Lyon, Squaxin Island Legal
Department, Shelton, Washington, for Respondent-Appellee
Squaxin Island Tribe.
Manning and Meghan E. Gavin, Cascadia Law Group PLLC,
Olympia, Washington, for Respondent-Appellee Nisqually Indian
M. Jannetta and Emily Haley, Office of the Tribal Attorney,
La Conner, Washington, for Respondent-Appellee Swinomish
Indian Tribal Community.
Michael S. Grossmann and Joseph V. Panesko, Assistant
Attorneys General; Office of the Washington Attorney General,
Olympia, Washington; for Respondent-Appellee State of
Rasmussen (argued), Law Offices of Lauren Rasmussen, Seattle,
Washington, for Respondents-Appellees Jamestown S'Klallam
Tribe and Port Gamble S'Klallam Tribe.
David Lees, III, Skokomish Indian Tribe, Shelton, Washington,
for Respondent-Appellee Skokomish Indian Tribe.
J. Dorsay and Lea Ann Easton, Dorsay & Easton LLP,
Portland, Oregon, for Real-Party-in-Interest Hoh Indian
Michelle Neil, Lummi Indian Nation, Office of the Reservation
Attorney, Bellingham, Washington, for Real-Party-in-Interest
Lummi Indian Nation.
J. King, Attorney, Foster Pepper PLLC, Seattle, Washington,
for Real-Party-in-Interest Quileute Indian Tribe.
J. Nielsen, Counsel, Nielsen, Broman & Koch PLLC,
Seattle, Washington, for Real-Party-in-Interest Quinault
Mannakee, Stillaguamish Tribe of Indians, Arlington,
Washington; Rob Roy Smith, Kilpatrick Townsend &
Stockton, LLP, Seattle, Washington; for
Real-Party-in-Interest Stillaguamish Tribe of Indians.
Warren Fiander and Elmer Jerome Ward, Sauk-Suiattle Indian
Tribe, Office of Legal Counsel, Darrington, Washington, for
Real-Party-in-Interest Sauk-Suiattle Indian Tribe.
Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
Judges, and Jed S. Rakoff, [*] District Judge.
Matters / Fishing Rights
panel affirmed the district court's dismissal due to lack
of jurisdiction of a subproceeding brought by Muckleshoot
Indian Tribe concerning usual and accustomed fishing grounds
and stations ("U&As") in western Washington
established under the "Stevens Treaties."
United States v. Washington (Final Decision #1), 384
F.Supp. 312, 330 (W.D. Wash. 1974), aff'd and
remanded, 520 F.2d 676 (9th Cir. 1975), Judge Boldt made
detailed findings of facts and conclusions of law defining
the U&As, and issued a permanent injunction that retained
jurisdiction in implementing the decision's decree.
Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d
1355, 1359-60 (9th Cir. 1998) ("Muckleshoot
1"), the Court held that where a tribe's
U&As have been "specifically determined" in
Final Decision #1, continuing jurisdiction under the
permanent injunction resides only in Paragraph 25(a)(1). In
Subproceeding 97-1, this Court affirmed District Judge
Rothstein's holding that the Muckleshoot's saltwater
U&As were limited to Elliot Bay. United States v.
Muckleshoot Indian Tribe, 235 F.3d 429, 438 (9th Cir.
2000). In Subproceeding 17-2 at issue in this case, the
Muckleshoot sought under Paragraph 25(a)(6) to expand their
U&As to certain areas of Puget Sound beyond Elliot Bay.
panel noted that in order for a tribe to bring an action
under Paragraph 25(a)(6), the U&A at issue must have not
been "specifically determined" by Final
Decision #1. As a threshold issue, the panel held that
the district court properly held that Muckleshoot's
saltwater U&As in Puget Sound had already been
"specifically determined" in their entirety by
Judge Boldt, and accordingly, there was no continuing
jurisdiction under Paragraph 25(a)(6) to entertain the
present subproceeding. The panel did not reach the other
issues raised on appeal.
Judge Ikuta stated that the majority's opinion frustrated
Judge Boldt's rulings in Final Decision #1 that
his specific determinations were not comprehensive, and that
tribes could invoke the court's continuing jurisdiction
to determine additional U&A fishing locations.