United States of America, and Lower Elwha Band of S'klallams Jamestown Band of S'klallams Port Gamble Band of S'klallams and the Skokomish Indian Tribe v. Lummi Indian Tribe
Docket: 98-35964
Court: Court of Appeals for the Ninth Circuit; December 12, 2000; Federal Appellate Court
The Ninth Circuit Court of Appeals addressed the appeal by the Lummi Indian Tribe regarding a district court ruling on fishing rights secured under the 1855 Treaty of Point Elliott. The ruling clarified that the Lummi's usual and accustomed fishing grounds did not include the Strait of Juan de Fuca or the mouth of the Hood Canal, but did include Admiralty Inlet. The case stems from prior decisions in United States v. Washington, where fishing rights were interpreted to encompass locations traditionally used by the tribes for fishing activities, regardless of proximity to their current habitats. The court affirmed the exclusion of the Strait of Juan de Fuca and the mouth of Hood Canal while reversing the exclusion of Admiralty Inlet from the Lummi's fishing rights.
The United States initiated a legal action to ensure the State of Washington complied with treaty fishing rights on behalf of several Western Washington Indian tribes. Judge Boldt identified the usual and accustomed fishing grounds for the Lummi Tribe, highlighting their historical trade in salmon, halibut, and shellfish, which thrived due to their ownership of vital saltwater fisheries. The Lummi employed a specific fishing technique called reef netting at various sites, effectively harvesting salmon, particularly sockeye, during its migration. The tribe's fishing activities extended across Northern Puget Sound and included significant freshwater fisheries.
Fifteen years later, the Four Tribes filed a request for a legal determination regarding the Lummi's fishing practices, alleging that the Lummi were fishing outside their designated grounds, specifically in the Strait of Juan de Fuca, Admiralty Inlet, and the mouth of Hood Canal. Both the Four Tribes and the Lummi sought summary judgment on whether these areas were included in the Lummi's fishing grounds. Judge Coyle ruled that these disputed areas were not included in the Lummi's usual and accustomed grounds and granted the Four Tribes' motion for summary judgment while denying the Lummi's motion. Following this ruling, the Lummi submitted a cross-request for determination to expand their designated fishing areas to include the disputed regions.
In the context of the Lummi Tribe's legal proceedings, following an initial period of discovery related to their "expansion" theory, both parties submitted cross-motions for summary judgment. Judge Rothstein, who had taken over Subproceeding 89-2, denied these motions on February 7, 1994, citing unresolved genuine issues of material fact regarding the inclusion of disputed areas in the Lummi's traditional grounds. Subsequent litigation in other subproceedings led to delays in the trial for Subproceeding 89-2.
As the trial date of June 15, 1998 approached, the Lummi sought to vacate the date and reopen discovery, claiming that a recent ruling in Muckleshoot Tribe v. Lummi Indian Tribe necessitated a reevaluation of the issues. They contended that the focus should shift to whether Judge Coyle's 1990 ruling correctly interpreted Judge Boldt's original intent regarding the disputed areas. The Four Tribes opposed this motion and asked for dismissal of the Lummi's requests. Judge Rothstein denied the Lummi's motion to vacate and established a briefing schedule for the ongoing issues.
On September 1, 1998, Judge Rothstein denied the Lummi's alternative motions and granted the Four Tribes' motion to dismiss, reaffirming Judge Coyle's prior decision that the disputed areas were not part of the Lummi's usual and accustomed grounds. A final judgment was issued on September 2, 1998, leading to the Lummi's timely appeal.
The Four Tribes presented two main arguments against reviewing Judge Coyle's 1990 order, asserting that it was a final order, thus precluding the Lummi's appeal, and that Judge Rothstein's application of the law of the case doctrine shielded it from further review. They argued that under 28 U.S.C. § 1291, the court's jurisdiction is limited to final decisions that resolve the case on the merits, which was the case with Judge Coyle's ruling.
Magistrate Judge Weinberg's minute order indicates that Judge Coyle's subsequent summary judgment order was not intended to be final, as it anticipated the possibility of amended pleadings after resolving summary judgment motions. The minute order specifies that responses to the Lummi's amended pleadings were due only after a decision on the motions, and it does not imply that amended pleadings could be filed post-disposition. The intent of the minute order was to prevent unnecessary additional litigation, and once Judge Coyle granted summary judgment to the Four Tribes, further litigation was deemed unnecessary.
Despite the absence of final judgment, the Lummi amended their pleadings to include a cross-request for determination, and both parties continued litigation without opposition from the district court. Importantly, no final judgment was entered, which is required under Federal Rule of Civil Procedure 58, although the lack of such a document does not preclude appellate jurisdiction under 28 U.S.C. § 1291. Rule 58 serves to minimize uncertainty regarding the orders subject to appeal.
The Four Tribes' assertion that Judge Rothstein's application of the law of the case doctrine protects Judge Coyle's summary judgment order from review is rejected. Judge Coyle's non-final decision merged into the final judgment entered on September 2, 1998, allowing it to be challenged on appeal. A party retains the right to appeal an interlocutory order even if they delay until a final judgment is issued.
The Lummi argue that Judge Coyle incorrectly granted summary judgment to the Four Tribes by neglecting Judge Boldt's intent to include certain marine areas within the Lummi's fishing grounds. The court reviews summary judgment grants de novo, focusing on the ambiguity regarding the boundaries of the Lummi's grounds as described in prior findings. When interpreting such ambiguous judgments, the reviewing court aims to discern and fulfill the issuing court's intent.
Judge Coyle assessed whether Judge Boldt intended to include certain disputed areas within the Lummi Tribe's usual and accustomed fishing grounds by examining evidence presented to Judge Boldt, particularly the exhibits referenced in Findings of Fact 45 and 46. These exhibits included summaries and reports from anthropologist Dr. Barbara Lane, who testified as an expert in Decision I, and maps she used. Dr. Lane authenticated these exhibits in a declaration and clarified that the "Straits" mentioned in her report referred specifically to Haro, Rosario, and Georgia Straits, intentionally excluding the Strait of Juan de Fuca. She also stated that at the time of her 1973 reports, she had not concluded that the Lummi predecessors' treaty-time fishing grounds extended to the Strait of Juan de Fuca, surrounding marine areas, or Admiralty Inlet. Furthermore, Dr. Lane did not interpret "Northern Puget Sound" in Judge Boldt's findings to include the Strait of Juan de Fuca or specific waters of Hood Canal.
The Lummi Tribe contended that Judge Coyle improperly considered Dr. Lane's declaration as it constituted later testimony that was deemed inadmissible under the precedent set in Muckleshoot, which stated that only evidence considered by Judge Boldt should inform his intent. However, the Muckleshoot decision did allow for the possibility of extrinsic evidence to understand Judge Boldt's intent better. Unlike in Muckleshoot, where Dr. Lane's later testimony was essential for interpreting a specific phrase, Judge Coyle did not rely on her declaration but instead focused on the exhibits presented to Judge Boldt.
Judge Coyle's order indicates a reliance on evidence presented to Judge Boldt, explicitly excluding later testimony. He affirmed that the evidence supports the conclusion that the Lummis' usual fishing areas do not include the Strait of Juan de Fuca. The Lummi's argument that Judge Coyle overlooked evidence in context is countered by the fact that while Dr. Lane provided extensive historical context, she also identified specific fishing locations utilized by the Lummi, such as Point Roberts and Bellingham Bay. Judge Boldt based his findings on this specific evidence rather than the broader claims of Lummi elders, which he deemed self-serving. Despite the Lummi's assertion that "Puget Sound" includes the Strait of Juan de Fuca, Judge Boldt's comparisons indicate otherwise, as he distinguished between the fishing practices of different tribes, noting that the Lummi primarily fished in Puget Sound while the Makahs fished in the Strait.
The Department of Fisheries has the authority to regulate sport and commercial salmon fishing in offshore areas within a three-mile limit in the Strait of Juan de Fuca and Puget Sound. Judge Boldt recognized Puget Sound and the Strait of Juan de Fuca as distinct regions, indicating that if he intended to include the Strait in the Lummi’s usual and accustomed fishing grounds, he would have explicitly named it, as he did with other areas. He similarly limited the Lummi’s grounds to "Northern Puget Sound," suggesting that areas like Hood Canal were not included. Although Judge Boldt did not specifically mention Admiralty Inlet, the absence of direct references does not exclude it from being part of "Northern Puget Sound." Geographically, Admiralty Inlet likely falls within the Lummi's customary fishing routes between the Fraser River and Seattle.
The Lummi also contested Judge Rothstein's adherence to Judge Coyle's ruling, arguing that Rothstein misapplied the law of the case doctrine, which prevents courts from reconsidering issues previously decided in the same case. This doctrine requires the prior decision to have been explicit or implied, with its application being discretionary and subject to review for abuse of discretion.
Judge Coyle explicitly determined that Judge Boldt did not intend for the Strait of Juan de Fuca or the mouth of the Hood Canal to be included in the Lummi's usual and accustomed grounds and stations, while concluding that Admiralty Inlet was included. Judge Rothstein did not abuse her discretion in applying the law of the case doctrine, as the Lummi only contested whether there was an intervening change in the law, specifically citing the Muckleshoot case. It was established that Judge Coyle’s summary judgment did not violate Muckleshoot, as he referred to the record from Judge Boldt. The ruling affirmed Judge Rothstein’s order of dismissal in part while reversing it in part.
The document outlines the continuing jurisdiction of the court as established in Judge Boldt's injunction, detailing the types of determinations that can be sought, including conformity with prior decisions and the location of fishing grounds. Additionally, it notes that the Lummi's amended response contained no actual changes, and addresses procedural points regarding the timing of filings related to summary judgment motions. It also clarifies that any perceived ambiguity regarding Lummi fishing rights was acknowledged by the Lummi themselves.
