Upper Skagit Tribe v. United States ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UPPER SKAGIT INDIAN TRIBE, 
Plaintiff-Appellee,
and
UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF WASHINGTON,
Defendant,
and No. 07-35061
D.C. Nos.
SUQUAMISH INDIAN TRIBE,

CV-70-09213-RSM
Defendant-Appellant, SP-05-00003-RSM
v. ORDER AND
JAMESTOWN S’KLALLAM TRIBE; OPINION
LOWER ELWHA KLALLAM TRIBE;
LUMMI INDIAN NATION; NISQUALLY
INDIAN TRIBE; PORT GAMBLE
S’KLALLAM TRIBE; SKOKOMISH
INDIAN TRIBE; TULALIP TRIBE,
Plaintiff-intervenors-Appellees,
SWINOMISH INDIAN TRIBAL
COMMUNITY,
Cross-claimant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted
October 21, 2008—Seattle, Washington
209
210 UPPER SKAGIT INDIAN TRIBE v. WASHINGTON
Filed January 5, 2010
Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Rymer;
Dissent by Judge Kleinfeld
UPPER SKAGIT INDIAN TRIBE v. WASHINGTON 211
COUNSEL
Michelle Hansen, Office of Tribal Attorney, Suquamish,
Washington, for appellant Suquamish Tribe. Douglas B.L.
212 UPPER SKAGIT INDIAN TRIBE v. WASHINGTON
Endreson, Sonosky, Chambers, Sachse, Endreson & Perry,
Washington, D.C., for appellant Skokomish Indian Tribe.
Lorane F. Hebert, Hogan & Hartson, Washington, D.C., for
appellant Lower Elwha Klallam Tribe.
Harold Chesnin, Office of the Tribal Attorney, Sedro Wool-
ley, Washington, (argued); Andrew H. Salter, Seattle, Wash-
ington, for appellee Upper Skagit Indian Tribe. James M.
Jannetta, LaConner, W Washington, for appellee Swinomish
Indian Tribal Community. Lauren P. Rasmussen, Law Offices
of Lauren P. Rasmussen, Seattle, Washington, for appellees
Port Gamble S’Klallam and Jamestown S’Klallam Tribes.
Mason D. Morisset, Morisset, Schlosser, Jozwiak & McGaw,
Seattle, Washington, for appellee The Tulalip Tribes.
Richard M. Berley, Ziontz, Chestnut, Varnell, Berley &
Slonim, Seattle, Washington, for intervenor-appellants.
ORDER
The petition for rehearing, filed August 20, 2009, is
GRANTED and the petition for rehearing en banc is denied
as moot.
This court’s opinion filed, August 6, 2009 and published at
Upper Skagit Tribe v. Washington, 576 F.3d 920 (9th Cir.
2009), is hereby withdrawn. A new opinion is filed concur-
rently herewith.
OPINION
RYMER, Circuit Judge:
This case arises out of, and is a sub-proceeding of, United
States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974)
UPPER SKAGIT INDIAN TRIBE v. WASHINGTON 213
(“Decision I”), where Judge Boldt determined the usual and
accustomed fishing grounds (“U&A”) for Puget Sound tribes.
Invoking the district court’s continuing jurisdiction, id. at 419,
Upper Skagit Indian Tribe1 filed a Request for Determination
that Saratoga Passage and Skagit Bay on the eastern side of
Whidbey Island are not within the Suquamish Tribe’s U&A
(Subproceeding 05-3). On cross-motions for summary judg-
ment, the district court concluded that Judge Boldt did not
intend to include those areas in Suquamish’s U&A, and
accordingly granted summary judgment for Upper Skagit. We
affirm.
I
As we previously said, “[w]e cannot think of a more com-
prehensive and complex case than this.” United States v.
Suquamish Indian Tribe, 901 F.2d 772, 775 (9th Cir. 1990).
In short, Judge Boldt 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.” Decision I, 384 F. Supp. at 332; United States v.
Lummi Indian Tribe, 235 F.3d 443, 445 (9th Cir. 2000) (quot-
ing Decision I). The term “customarily” does not include “oc-
casional and incidental” fishing or trolling incidental to travel.
Decision I, 384 F. Supp. at 353. Tribes are entitled to take up
to 50 percent of the harvested fish from runs passing through
their off-reservation U&A grounds. Id. at 343.2
1
Jamestown S’Klallam and Port Gamble S’Klallam joined as plaintiff-
intervenors, as did the Tulalip Tribes. Swinomish Indian Tribal Commu-
nity filed a cross-Request for Determination to the same general effect as
Upper Skagit’s. For convenience, we refer to these parties collectively as
Upper Skagit unless context requires otherwise.
2
We substantially affirmed Decision I in United States v. Washington,
520 F.2d 676 (9th Cir. 1975), and the Supreme Court upheld the decision
with slight modification in Washington v. Wash. State Commercial Pas-
senger Fishing Vessel Ass’n, 443 U.S. 658 (1979).
214 UPPER SKAGIT INDIAN TRIBE v. WASHINGTON
Judge Boldt determined Suquamish’s U&A during supple-
mental proceedings on April 9-11, 1975. See United States v.
Washington, 459 F. Supp. 1020, 1048-50 (W.D. Wash. 1978)
(“Decision II”). The evidence consisted of the April 9 testi-
mony and report of Dr. Barbara Lane, an expert for the United
States on tribal identity, treaty status and fisheries for all of
the tribes who intervened in the original proceedings in Deci-
sion I. She provided a map of Suquamish fishing sites, and
her testimony also addressed a map attached to proposed
Suquamish fishing regulations that outlined disputed areas of
Suquamish’s and other tribes’ U&As. Based on this evidence,
Judge Boldt ruled that the Suquamish had made a “prima
facie” showing that its U&A fishing grounds were: “the
marine waters of Puget Sound from the northern tip of
Vashon Island to the Fraser River including Haro and Rosario
Straits, the streams draining into the western side of this por-
tion of Puget Sound and also Hood Canal.” Finding of Fact
No. 5 (FF 5), Decision II, 459 F. Supp. at 1049.3
In this Subproceeding, Upper Skagit alleges that the Suqua-
mish began fishing in the Subproceeding Area4 for the first
time in 2004. It seeks an order determining that the portion of
Saratoga Passage from the Snatelum Point Line to the Green-
bank Line and Skagit Bay to the Deception Pass bridge is not
3
In May 1985 the Suquamish filed a Request for Determination to deter-
mine their U&A on the eastern side of Puget Sound. See Suquamish, 901
F.2d at 774. We noted that “[a]t the time of the Treaty of Point Elliott, [the
Suquamish] did not fish in those areas, which were the usual and accus-
tomed fishing places of the Duwamish.” Id. The Suquamish unsuccess-
fully argued that they were successors in interest to the Duwamish. We
referred to the Suquamish’s U&A as being the “west side of Puget Sound”
whereas the Duwamish’s was on the eastern side. Id. at 774, 776 n.9.
4
The Upper Skagit originally defined the Subproceeding Area as Sara-
toga Passage, from the Greenbank Line north to the Snatelum Point Line,
and Skagit Bay. The Swinomish cross-request defines the case area for
their purposes as Catch Reporting Area 24C. Thus, as the district court
described it, the case area encompasses that portion of Saratoga Passage
within Catch Reporting Area 24C, plus Skagit Bay.
UPPER SKAGIT INDIAN TRIBE v. WASHINGTON 215
a U&A for the Suquamish. Upper Skagit argued in district
court that there was no evidence before Judge Boldt in 1975
that Suquamish’s U&A included those areas. Suquamish, on
the other hand, contended that Judge Boldt’s definition of its
U&A unambiguously included the contested areas.
The district court adhered to a two-step procedure in keep-
ing with our decisions in 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”). First, it determined that Upper Skagit
had the burden to offer evidence that FF 5 was ambiguous, or
that Judge Boldt intended something other than its apparent
meaning (i.e., all salt waters of Puget Sound). Second, if the
evidence, including contemporaneous understanding of the
extent of “the marine waters of Puget Sound,” showed that
“Puget Sound” as used in the Suquamish U&A included the
Subproceeding Area, Upper Skagit had the burden to show
that there was no evidence before Judge Boldt that the Suqua-
mish fished on the east side of Whidbey Island or traveled
there in route to the San Juans and the Fraser River area.
Applying this analysis, the court found that “Puget Sound”
as defined by Judge Boldt included the waters of Saratoga
Passage and Skagit Bay.5 However, based on the actual evi-
dence that was before Judge Boldt, the district court in this
Subproceeding concluded that the judge meant something
other than this in FF 5 given that nothing in the record showed
5
Among other things, this was based on FF 164 in Decision I, adopting
the definition of “Puget Sound” in the “Joint Statement Regarding the
Biology, Status, Management, and Harvest of the Salmon and Steelhead
Resources of the Puget Sound and Olympic Peninsula Drainage Area of
Western Washington,” 384 F. Supp. at 382-83, which included “the Strait
of Juan de Fuca and all saltwater areas inland therefrom”; Judge Boldt’s
several references to “Puget Sound” as a broad area; and maps indicating
that “Puget Sound” encompassed a very broad region.
216 UPPER SKAGIT INDIAN TRIBE v. WASHINGTON
the Suquamish fished on the east side of Whidbey Island, or
traveled through there on their way up to the San Juans and
the Fraser River area. The court noted that Judge Boldt relied
heavily on Dr. Lane’s reports and testimony. While she did
say that the Suquamish traveled widely by canoe (as was
“normal” for “all Indians in Western Washington”), Lane pro-
vided no evidence that the tribe fished or traveled in Saratoga
Passage or Skagit Bay.6 Her report listed places where the
Suquamish traditionally took fish, but neither Saratoga Pas-
sage nor Skagit Bay was among them.7 And when asked about
a map delineating areas of Puget Sound where the Suquamish
traveled, Lane referred only to areas that omitted Saratoga
Passage and Skagit Bay. The Suquamish pointed out that they
fished at the mouth of the Snohomish River, which is on the
eastern side of Whidbey Island, but this area is well south of
the Subproceeding Area and was described by Lane as a fall
and winter fishing site at the mouth of a river, which was
“separate and distinct from the spring and summer travels up
to the Fraser River.” Further, the district court noted the
Suquamish’s position that they maintained close relations
with the Skagit and Snohomish people, who had fishing
camps on Whidbey and Camano Islands, but thought it would
be speculative to conclude this meant that the Suquamish
must necessarily have camped and fished there as well.
Finally, the court found that Judge Boldt’s description of the
6
Geographically, Saratoga Passage and Skagit Bay are nearly enclosed
or inland waters to the east of Whidbey Island. The southern entrance to
these waters includes Possession Sound and the mouth of the Snohomish
River, where the Suquamish were known to fish seasonally. The northern
exits through Deception Pass and Swinomish Slough are narrow and
restricted; both areas were controlled by the Swinomish at treaty times.
7
The places Dr. Lane listed where the Suquamish fished for salmon,
herring, steelhead, halibut, and shellfish by trolling, spearing, nets, or traps
were: Apple Cove Point, Hood Canal, Dye’s Inlet, Liberty Bay, the head
of Sinclair Inlet, Skunk Bay, Union River and Curley Creek, Blake Island,
Jefferson Head, Point to Point, Rich’s Passage, Orchard Point, Indianola,
Ross Point, Miller’s Bay, Agate Passage, and the area between Chico and
Erland’s point.
UPPER SKAGIT INDIAN TRIBE v. WASHINGTON 217
Suquamish U&A tracks nearly verbatim the language in Dr.
Lane’s report, demonstrating the judge’s intent to conform the
Suquamish U&A only to those areas documented by Lane.
The Suquamish timely appealed.
II
[1] The Suquamish mainly fault the district court for having
engaged in a sufficiency of the evidence analysis instead of
accepting Judge Boldt’s unambiguous definition of “Puget
Sound.” In our view, however, the court faithfully followed
the Muckleshoot construct. As Muckleshoot III indicates,
whether the language of one of Judge Boldt’s findings is
ambiguous is a factor in ascertaining the judge’s intent, but
not a dispositive one, because it is necessary to understand the
findings “in light of the facts of the case.” 235 F.3d at 433(internal quotation marks omitted). This means that, as the
district court held here, the tribe asserting ambiguity in a
U&A determination must offer “ ‘evidence that suggests that
[the U&A] is ambiguous or that the court intended something
other than its apparent meaning.’ ” Id. (quoting Muckleshoot
I, 141 F.3d at 1358) (emphasis added in Muckleshoot III omit-
ted). The determination is to be based on the record before
Judge Boldt as of April 18, 1975, when he established the
Suquamish’s U&A, but may also include additional evidence
if it sheds light on the understanding that Judge Boldt had of
the geography at the time. Muckleshoot II, 234 F.3d at 1100
(citing Muckleshoot I, 141 F.3d at 1360).
[2] We agree with the district court that Upper Skagit met
this burden. There is no evidence in the record before Judge
Boldt that the Suquamish fished or traveled in the waters on
the eastern side of Whidbey Island, particularly in Saratoga
Passage or Skagit Bay. In addition to Dr. Lane’s testimony
and analysis upon which Judge Boldt relied heavily, the dis-
trict court also reviewed the April 1975 hearing transcript for
the day after Lane testified to ascertain the judge’s intent. On
218 UPPER SKAGIT INDIAN TRIBE v. WASHINGTON
that occasion the state challenged the sufficiency of the
Suquamish’s prima facie showing that its U&A was as broad
as claimed. Rejecting that challenge, Judge Boldt ruled from
the bench:
The Court finds that a prima facie showing has been
made that travel and fishing of the Suquamish Tribe
through the north Sound areas; that is areas one and
two as designated by the state, was frequent and also
regular, not merely occasional, and the application of
the Suquamish for such a ruling is granted.
Transcript of proceedings, April 10, 1975 (emphasis added).
The currently disputed Subproceeding Area is not in Areas
One or Two, but in Area Four. Although Lane’s Report
showed that several areas on the west shores of Area Four
comprised Suquamish’s on-reservation territory and fishing
locations,8 there was no evidence from Lane or otherwise that
the east shores of Area Four, as well as Skagit Bay and Sara-
toga Passage, were part of Suquamish’s U&A.9
8
The district court was either mistaken, or misspoke, when it said that
the area designated as Area Four was not mentioned. Area Four was dis-
cussed in Dr. Lane’s Report, but the discussion pertained to the west
shores and not to that part of Area Four which includes Skagit Bay and
Saratoga Passage.
9
Given that the decision in this Subproceeding must be made on the
record that was before Judge Boldt, augmented only by evidence of con-
temporaneous understanding of ambiguous terms — which the district
court here gave the parties an opportunity to do — a trial on the merits
would reveal no additional relevant facts. In these circumstances, the dis-
trict judge, who is also the trier of fact, may resolve conflicting inferences
and evaluate the evidence to determine Judge Boldt’s intent. See, e.g.,
Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-24 (5th Cir. 1978); In re
First Capital Holdings Corp., 179 B.R. 902, 904-05 (Bankr. C.D. Cal.
1995) (Tashima, J.) (so holding). Nor, given the lack of any evidence of
Suquamish fishing or travel in these areas, let alone fishing that was more
than “incidental” or “occasional,” is there any basis for supposing that “it
is just as likely” that Saratoga Passage and Skagit Bay were intended to
be included as that they were not. Cf. Lummi, 235 F.3d at 452.
UPPER SKAGIT INDIAN TRIBE v. WASHINGTON 219
[3] In addition, Judge Boldt used specific geographic
anchor points in describing other tribes’ U&As. See, e.g.,
Decision I, 384 F. Supp. at 360, 371 (Lummi and Puyallup
U&As); Decision II, 459 F. Supp. at 1049 (Nooksack, Swi-
nomish and Tulalip U&As). From this it is reasonable to infer
that when he intended to include an area, it was specifically
named in the U&A. In Suquamish’s case, the only inclusive
geographic anchor points for the term “Puget Sound” are the
“Haro and Rosario Straits,” which do not include or delineate
the Subproceeding Area. That Judge Boldt neglected to
include Skagit Bay and Saratoga Passage in the Suquamish’s
U&A supports our conclusion that he did not intend for them
to be included. See Lummi, 235 F.3d at 451-52.
[4] The district court’s conclusion does not have the effect
of re-adjudicating Suquamish’s U&A or diminishing it, as the
Tribe contends, for the Suquamish never had the right to fish
in those areas in the first place. Nor is it necessary, as the
Suquamish suggests, to include the Subproceeding Area in its
U&A in order to reconcile Judge Boldt’s determination of the
Suquamish and Swinomish U&As in his April 18, 1975 order.
The Swinomish’s U&A used the phrase “marine areas of
northern Puget Sound,” but it also used geographic anchors
delineating an area that specifically included Saratoga Pas-
sage and Skagit Bay. As the district court (and the Suqua-
mish) recognized, the inquiry properly focuses on individual
U&As, and the fact that Judge Boldt defined “Puget Sound”
in one instance as including Skagit Bay and Saratoga Passage
does not mean that references to “Puget Sound” in other
U&As always include those same areas. If anything, the
judge’s inclusion of reference points in one U&A but not in
another indicates a lack of intent to include them generically.
Finally, the Suquamish maintain that the district court erred
in considering its post-1975 fishing regulations, however as
we read the court’s order, it merely referred to the scope of
those regulations as an aside to the Suquamish’s understand-
ing of its own U&A — not as evidence bearing on Judge
Boldt’s intent in determining that U&A.
220 UPPER SKAGIT INDIAN TRIBE v. WASHINGTON
[5] Accordingly, we agree with the district court that Judge
Boldt did not intend for Suquamish’s U&A to include Skagit
Bay and Saratoga Passage.10
AFFIRMED.
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent.
In my view, the better reading of “Puget Sound” is that it
means “Puget Sound.” We are engaged in the odd activity of
deciding what a long deceased judge thought was accurate
history about what happened 150 years earlier. We cannot
retry the case. The best way to determine what the judge
thought is the language he used. He said “Puget Sound.” True,
a good case could have been made under the evidence for
something narrower, something along the lines the majority
describes. There was not much evidence, not much more than
a report by an anthropologist about what she thought had been
the various tribal patterns 150 years before, based on
extremely sparse evidence available to her. I laid out my view
more fully in the earlier decision in this case, Upper Skagit
Tribe v. Washington, 576 F.3d 920 (9th Cir. 2009). I could be
wrong, and today’s majority could be wrong, but I am pretty
sure that it is a mistake to reopen the matter without any more
chance of being right.
Continually revisiting Judge Boldt’s decades-old opinions
(and the limited record supporting them) in an attempt to dis-
cern what he thought the customs of multiple people were in
the 1850’s and earlier, besides being extremely burdensome
10
Given this disposition, we do not need to reach Upper Skagit’s further
argument that Suquamish is judicially estopped from arguing that the term
“Puget Sound” is ambiguous.
UPPER SKAGIT INDIAN TRIBE v. WASHINGTON 221
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.”1
That we now reverse ourselves in this iteration of the case
underscores the futility of our pursuit moving forward and
demonstrates why Judge Boldt’s 1974 decree and its imple-
mentation process, continuing this case in perpetuity, should
be brought to an end.2
1
U.S. v. Washington, 573 F.3d 701, 710-11 (9th Cir. 2009).
2
See id.