UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT · PDF fileNos. 13-35925 and 13-35928 ....

Nos. 13-35925 and 13-35928

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, et al., Plaintiffs,

v.

STATE OF WASHINGTON, Defendant.

MAKAH INDIAN TRIBE, Petitioner-Appellee,

v.

QUILEUTE INDIAN TRIBE and QUINAULT INDIAN NATION, Respondents-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Nos. 2-09-sp-00001-RSM and 2-70-cv-09213-RSM

The Honorable Ricardo S. Martinez United States District Court Judge

BRIEF OF APPELLEE MAKAH INDIAN TRIBE RESPONDING TO BRIEFS BY QUILEUTE TRIBE, QUINAULT NATION AND HOH TRIBE

Marc D. Slonim, WSBA No. 11181 Joshua Osborne-Klein, WSBA No. 36736 ZIONTZ CHESTNUT 2101 Fourth Avenue, Suite 1230 Seattle, WA 98121 (206) 448-1230 Attorneys for the Makah Indian Tribe

Case: 13-35925 02/18/2014 ID: 8982259 DktEntry: 33-1 Page: 1 of 73

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned

counsel for Appellee Makah Indian Tribe certifies that the Makah Indian Tribe is a

federally recognized Indian tribe, that it does not have any parent corporation, and

that no publicly-held corporation owns stock in the Makah Indian Tribe.

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TABLE OF CONTENTS

INTRODUCTION .................................................................................................... 1

JURISDICTIONAL STATEMENT ....................................................................... 3

1. District Court Jurisdiction. ............................................................................ 3

2. Appellate Jurisdiction. .................................................................................... 4

ISSUES PRESENTED FOR REVIEW .................................................................. 5

STATEMENT OF THE CASE ............................................................................... 6

1. Quileute, Quinault and Hoh’s Complaints in Intervention. ....................... 6

2. Final Decision I: the Case-Area Limitation and U&A Determinations. ... 7

3. The Case Area after Final Decision I. ........................................................... 8

4. Quileute, Quinault and Hoh’s Invocation of the District Court’s

Jurisdiction in Pacific Ocean Waters outside the Original Case Area. ...12

5. Federal Regulations Identifying Quileute, Quinault and Hoh Ocean

Fishing Places. ...............................................................................................17

6. The Midwater Trawlers Litigation. ............................................................20

7. Makah’s Request for Determination...........................................................24

8. Procedural History and Rulings Presented for Review. ...........................28

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SUMMARY OF ARGUMENT .............................................................................32

ARGUMENT ..........................................................................................................35

1. This Court Lacks Jurisdiction. ....................................................................35

2. Quileute, Quinault and Hoh Waived Their Immunity. .............................43

a. Quileute, Quinault and Hoh’s Waivers Extend to Inter-tribal

Disputes. ...................................................................................................44

b. Quileute, Quinault and Hoh’s Waivers Extend to Waters outside the

Original Case Area. ................................................................................48

3. Federal Regulations Do Not Deprive the District Court of Subject Matter

Jurisdiction. ...................................................................................................55

4. Hoh’s Claim that the District Court Erred in Denying Intervention

Lacks Merit. ...................................................................................................60

CONCLUSION .......................................................................................................62

iii


TABLE OF AUTHORITIES

Cases

Behrens v. Pelletier, 516 U.S. 299 (1996) ........................................................ 37, 38

Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085 (9th Cir. 2007) .........37

Churchill County v. Babbitt, 150 F.3d 1072 (9th Cir.), amended on denial of

rehearing, 158 F.3d 491 (9th Cir. 1998), abrogated in other respects, Wilderness

Soc’y v. Forest Service, 630 F.3d 1171 (9th Cir. 2011) ........................................42

Classic Concepts v. Linen Source, 716 F.3d 1282 (9th Cir. 2013) ...........................37

Cunningham v. Gates, 229 F.3d 1271 (9th Cir. 2000) ............................................43

Greene v. United States, 996 F.2d 973 (9th Cir. 1993) ............................................23

Harmston v. San Francisco, 627 F.3d 1273 (9th Cir. 2010) ....................................37

In re White, 139 F.3d 1268 (9th Cir. 1998) ....................................................... 44, 52

Knox v. Sw. Airlines, 124 F.3d 1103 (9th Cir. 1997) ................................................38

Makah v. Mosbacher, No. C85-1606 (W.D. Wash.) ...............................................14

Makah v. Verity, 910 F.2d 555 (9th Cir. 1990) .........................................................59

McClendon v. U.S., 885 F.2d 627 (9th Cir. 1989) ............................................. 44, 51

Meredith v. Oregon, 321 F.3d 807 (9th Cir. 2003) ...................................................43

Midwater Trawlers Coop v. Dep’t of Commerce, 282 F.3d 710 (9th Cir. 2002) ... 24,

25

iv


Midwater Trawlers Coop. v. Dep’t of Commerce, 139 F. Supp. 2d 1136 (W.D.

Wash. 2000), aff’d in part, rev’d in part, 282 F.3d 710 (9th Cir. 2002) ........ 20, 21

Midwater Trawlers Coop. v. Dep’t of Commerce, 393 F.3d 994 (9th Cir. 2004) ....25

Molloy v. Wilson, 878 F.2d 313 (9th Cir. 1989) .......................................................41

Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir. 1998) .........4, 48

Oneida Tribe v. Village of Hobart, 500 F. Supp. 2d 1143 (E.D. Wis. 2007) ..........44

Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416 (9th Cir. 1989) .....44

Pena v. Meeker, 298 Fed. Appx. 562 (9th Cir. 2008) ...............................................37

Puget Sound Gillnetters Ass’n v. U.S. District Court, 573 F.2d 1123 (9th Cir. 1978)

..........................................................................................................................9, 11

Rupp v. Omaha Indian Tribe, 45 F.3d 1241 (8th Cir. 1995) ............................. 44, 52

SEC v. Capital Consultants, 453 F.3d 1166 (9th Cir. 2006) ....................... 36, 37, 42

Starbound LLC v. Guitierrez, No. C07-0910-JCC, 2008 WL 1752219 (W.D. Wash.

Apr. 15, 2008) ................................................................................................ 25, 26

Stringfellow v. Concerned Neighbors, 480 U.S. 370 (1987) ...................................42

Swint v. Chambers County Comm’n, 514 U.S. 35 (1995) .......................................43

U.S. v. Layton, 645 F.2d 681 (9th Cir. 1981) ............................................................42

U.S. v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000) .................................4, 48

U.S. v. Muckleshoot Tribe, 235 F.3d 429 (9th Cir. 2000) .........................................48

U.S. v. Oregon, 657 F.2d 1009 (9th Cir. 1981)............................................ 45, 51, 52

v


U.S. v. Washington, 143 F. Supp. 2d 1218 (W.D. Wash. 2001) ..............................12

U.S. v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) ............................. passim

U.S. v. Washington, 459 F. Supp. 1020 (W.D. Wash 1978) ....................... 10, 11, 58

U.S. v. Washington, 520 F.2d 676 (9th Cir. 1975) ..................................................3, 9

U.S. v. Washington, 573 F.3d 701 (9th Cir. 2009) ....................................................60

U.S. v. Washington, 626 F. Supp. 1405 (W.D. Wash. 1985) ...................... 11, 29, 45

U.S. v. Washington, 730 F.2d 1314 (9th Cir. 1984) ..................................................11

U.S. v. Washington, 873 F. Supp. 1422 (W.D. Wash. 1994), aff’d in part, rev’d in

part, 157 F.3d 630 (9th Cir. 1998) ................................................................. 11, 12

Upper Skagit Tribe v. Washington, 590 F.3d 1020 (9th Cir. 2010) .................. 48, 60

Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443

U.S. 658 (1979) ...................................................................................................... 9

Statutes

28 U.S.C. 1291 .........................................................................................................35

28 U.S.C. 1292 .........................................................................................................41

28 U.S.C. 1331 .......................................................................................................3, 4

28 U.S.C. 1362 .......................................................................................................3, 4

Regulations

51 Fed. Reg. 16471 (May 2, 1986) ..........................................................................17

52 Fed. Reg. 17264 (May 6, 1987) ..........................................................................18

vi


61 Fed. Reg. 28786 (June 6, 1996) ............................................................. 17, 19, 23

Treaties

Treaty of Olympia, 12 Stat. 971 ................................................................................. 3

vii


INTRODUCTION

After the Quileute Tribe and the Quinault Nation threatened to preempt the

Makah Tribe’s Pacific whiting fishery, Makah initiated a subproceeding in U.S. v.

Washington, the northwest Indian treaty fishing rights litigation, seeking a

determination of Quileute and Quinault’s Pacific Ocean usual and accustomed

fishing places (U&A). Quileute, Quinault, and the Hoh Tribe seek interlocutory

review of three district court orders in the case. They assert that their sovereign

immunity bars Makah’s request, federal regulations deprive the district court of

jurisdiction to determine their ocean U&A, and Hoh should have been permitted to

intervene in the subproceeding.

This Court should dismiss the appeals for lack of jurisdiction. If the Court

finds it has jurisdiction, it should affirm.

Quileute and Quinault’s immunity is no bar to Makah’s claims. They

intervened in this case seeking an adjudication of their U&A without geographic

limitation, thereby waiving their immunity for purposes of such an adjudication.

Although the district court subsequently limited the case area to waters within the

State of Washington, this limitation was in effect for only a few years; for more

than 30 years, the district court has exercised jurisdiction over treaty fishing rights

disputes (including inter-tribal disputes and U&A determinations) in ocean waters

outside the State. Quileute and Quinault themselves have repeatedly invoked the

1


district court’s jurisdiction to protect their treaty rights in ocean waters outside the

State, thereby waiving their immunity to determine whether (and where) they have

such rights in the first place.

Moreover, long after the district court expanded the case area to include

ocean waters, Quileute and Quinault represented to the district court that their

waivers extended to inter-tribal disputes and to all issues (including U&A

determinations) validly within the scope of the case. And, they represented to this

Court that the district court has jurisdiction to determine their ocean U&A, and that

they have waived their immunity for purposes of such a determination. Under

these circumstances, Quileute and Quinault’s plea for an unprecedented immunity

enjoyed by no other tribe in this case lacks merit.

Hoh’s immunity is also no bar to Makah’s claims because: (1) Makah seeks

no relief against Hoh; and (2) Hoh too has waived its immunity.

The federal regulations do not bar Makah’s claims because they defer to and

do not purport to displace the district court’s jurisdiction to determine ocean U&A,

just as Quileute and Quinault previously argued to this Court.

Hoh’s motion to intervene was properly denied because Hoh is already a

party to this case and entitled to participate fully in this subproceeding.

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JURISDICTIONAL STATEMENT

1. District Court Jurisdiction.

In 1971, Quileute, Quinault and Hoh intervened in this case seeking an

adjudication that they possessed a right of taking fish within their U&A pursuant to

the Treaty of Olympia, 12 Stat. 971. Makah Supplemental Excerpts of Record

(MSER) 373, 381, 420. Because their complaints arose under a “treat[y] of the

United States” they were within the district court’s subject matter jurisdiction

under 28 U.S.C. §§ 1331 and 1362. See U.S. v. Washington, 384 F. Supp. 312, 399

(W.D. Wash. 1974), substantially aff’d and remanded, 520 F.2d 676 (9th Cir.

1975).

The district court (per Judge Boldt) entered a declaratory judgment, decree

and injunction in 1974. See id. at 405-08, 412-19. The court retained continuing

jurisdiction “to take evidence, to make rulings and to issue such orders as may be

just and proper upon the facts and law and in implementation of [its] decree.” Id.

at 408. It authorized “any” party to “invoke the continuing jurisdiction of [the]

court in order to determine: (a) whether or not the actions, intended or effected by

any party … are in conformity with Final Decision # I or this injunction; … [or] (f)

the location of any of a tribe’s usual and accustomed fishing grounds and stations

not specifically determined by Final Decision # I ….” Id. at 419. The court

3


modified the procedures for initiating a subproceeding in 1993, but retained these

provisions. MSER 272-73 (¶¶25(a)(1), (6)).

Paragraph 25(a) (now 25(a)(1)) has been used to resolve disputes regarding

the meaning of the court’s previous U&A findings; in such proceedings the

“evidence” has been limited, for the most part, to the record before the court when

it entered its previous findings. See, e.g., U.S. v. Lummi Indian Tribe, 235 F.3d

443, 450 (9th Cir. 2000). In contrast, paragraph 25(f) (now 25(a)(6)) has been

invoked to obtain new U&A determinations; in such proceedings, the parties may

submit “new” evidence bearing on the matter. See, e.g., Muckleshoot Tribe v.

Lummi Tribe, 141 F.3d 1355, 1360 (9th Cir. 1998).

Makah invoked these provisions, requesting a determination of Quileute and

Quinault’s U&A in the Pacific Ocean. Quileute and Quinault Excerpts of Record

(ER) 569, 578. Because the request arises under a treaty of the United States it,

like Quileute and Quinault’s original complaints, is within the district court’s

subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1362.

2. Appellate Jurisdiction.

Quileute, Quinault and Hoh appeal orders entered on July 8 and September

3, 2013. ER 296. In those orders, the district court: (1) declined to reconsider an

earlier ruling denying Quileute and Quinault’s motion to dismiss on sovereign

immunity grounds because the request for reconsideration was untimely; and (2)

4


rejected Quinault’s argument that federal regulations deprived the court of

jurisdiction to determine the location of its U&A. ER 30, 31-32; ER 18-19 & n.1.

Hoh also appeals an August 8, 2012, order denying its motion to intervene in the

subproceeding. Hoh Excerpts of Record (HER) 17-18.

Although the district court’s orders did not end the litigation, Quileute,

Quinault and Hoh contend that the court’s refusal to reconsider its prior sovereign

immunity ruling is an appealable collateral order (but make no claim that the order

regarding the effect of the federal fishing regulations is a collateral order, and

articulate no other basis for appellate jurisdiction over it). Hoh also contends the

order denying intervention is a collateral order or subject to this Court’s pendent

jurisdiction. For the reasons below, these claims lack merit and this Court lacks

jurisdiction over these appeals.

ISSUES PRESENTED FOR REVIEW

1. Does this Court have jurisdiction over district court orders: (a) declining to

reconsider a prior sovereign immunity ruling on the grounds that the request was

untimely; (b) holding that federal regulations do not deprive the court of subject

matter jurisdiction; or (c) denying an existing party’s motion to intervene?

2. Did Quileute and Quinault (and Hoh) waive their immunity for purposes of

determining their ocean U&A by: (a) intervening in this case and expressly

requesting an adjudication of their treaty fishing rights without geographic

5


limitation; (b) representing to the district court that their waivers of immunity

extended to inter-tribal disputes regarding all issues validly within the scope of the

case, at a time when there was no geographic limitation on the case area; (c)

repeatedly seeking relief with respect to their treaty fishing rights in ocean waters,

including ocean waters outside the State; and (d) representing to this Court that the

district court retains jurisdiction to determine the location of their ocean U&A and

they have waived their immunity for purposes of such a determination?

3. Do federal regulations defining Quileute and Quinault’s ocean fishing

grounds as an interim accommodation pending a determination by the district court

deprive the district court of jurisdiction to determine the location of those grounds?

4. Did the district court err in denying Hoh intervention on the grounds that

Hoh is already a party and entitled to participate fully in the subproceeding?

STATEMENT OF THE CASE

1. Quileute, Quinault and Hoh’s Complaints in Intervention.

Quileute, Quinault and Hoh intervened in the case in 1971. MSER 369-77,

378-84, 409-21. In its complaint in intervention, Quileute asked the district court

to “order, adjudge and decree” that it “owns, and it may authorize its members to

exercise, a right derived from the laws and treaties of the United States to take fish

at all usual and accustomed fishing places….” MSER 373 (emphasis added). It

specifically alleged it had U&A “within and contiguous to the western portion of

6


the State of Washington, including but not limited to… the ocean waters of the

Pacific, offshore of the western coast of Washington. MSER 370 (emphasis

added).

Similarly, Quinault and Hoh asked the district court to “ORDER,

ADJUDGE, and DECREE” that each tribe “owns” and “may authorize its

members to exercise” the right “to take fish at its usual and accustomed places….”

MSER 381, 420 (emphasis added). Neither Quileute, Quinault nor Hoh limited

their requests for relief to waters within the State or any other geographic area.

2. Final Decision I: the Case-Area Limitation and U&A Determinations.

In 1973, two years after Quileute, Quinault and Hoh intervened, the district

court limited the case to an adjudication of the tribes’ treaty fishing rights “within

the watersheds of Puget Sound and the Olympic Peninsula north of Gray’s Harbor,

and in the adjacent offshore waters which are within the jurisdiction of the State of

Washington.” ER 92; see also U.S. v. Washington, 384 F. Supp. at 400. The court

also limited the case to application of the tribes’ rights to anadromous fish. Id.

In Final Decision I, the district court held that the exercise of the tribes’

treaty fishing rights was “limited ... by the geographical extent of the usual and

accustomed fishing places….” 384 F. Supp. at 332, 402, 406-07. The court

defined “usual and accustomed grounds and stations” and identified some of those

locations for each tribe. See id. at 332-33, 353, 356, 359-82, 401, 402.

7


Notwithstanding the case-area limitation, the court heard evidence and made

findings regarding at least some U&A outside the case area. See, e.g., id. at 374-75

(Finding 121 addressing Quinault U&A south and east of the case area).

The court’s finding regarding Quileute’s U&A includes certain rivers and

lakes “and the adjacent tidewater and saltwater areas.” Id. at 372. Its finding

regarding Quinault’s U&A states that “[o]cean fisheries were utilized in the waters

adjacent to their territory.” Id. at 374. The court did not state explicitly whether

these findings were limited to the case area.

The court retained jurisdiction to determine, at the request of “any” party,

“the location of any of a tribe’s usual and accustomed fishing grounds not

specifically determined by Final Decision # I.” Id. at 419.

3. The Case Area after Final Decision I.

For several reasons, the case-area and species limitations in Final Decision I

proved short lived. First, in Final Decision I, the district court made an equitable

adjustment “to compensate treaty tribes for the substantially disproportionate

numbers of fish, many of which might otherwise be available to treaty right

fishermen for harvest, caught by non-treaty fishermen in marine areas closely

adjacent to but beyond the territorial waters of the State ….” 384 F. Supp. at 344;

see id. at 386-87, 416. Except for harvests by foreign ships, this Court upheld this

adjustment. U.S. v. Washington, 520 F.2d at 689.

8


In Puget Sound Gillnetters Ass’n v. U.S. District Court, 573 F.2d 1123 (9th

Cir. 1978), aff’d in part, vacated in part, Washington v. Washington State

Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979), this Court

recognized that, in exercising its continuing jurisdiction, the district court would

need to address the treaty ocean fishery as well. It noted there was “a small tribal

ocean fishery,” but the parties did not agree whether it was included in the tribal

share. Id. at 1129 n.7.1 This Court stated that “[i]f it is not now included, we

presume the district court would include it on a proper showing.” Id. The Court

did not suggest that either treaty or non-treaty ocean fisheries could be disregarded

if they took place outside the State.

The Supreme Court upheld the district court’s equitable adjustment for

harvests outside State waters as modified by this Court, even though the fish were

“caught in waters subject to the jurisdiction of the United States, rather than of the

State.” Passenger Fishing Vessel, 443 U.S. at 688. It held that both treaty and

non-treaty “[s]hares in the fish runs should not be affected by the places where the

fish are taken.” Id. at 687. Given this holding, consideration of treaty fishing

rights in the Pacific Ocean outside the initial case area became essential to

implement the district court’s decree.

1 This fishery took place more than three miles offshore. See, e.g., MSER 368 (describing Quileute trolling five miles offshore).

9


Second, in 1975, the district court itself held that the case-area and species

limitations in Final Decision I did not constrain its continuing jurisdiction. In

response to requests for determination regarding non-anadromous fish, the district

court acknowledged that “[t]he subject matter of the original trial” had been

“limited to off-reservation treaty Indian fishing rights in the case area and the

application of said rights to anadromous fish resources.” U.S. v. Washington, 459

F. Supp. 1020, 1048 (W.D. Wash 1978). However, the court pointed out that it

had “expressly retained continuing jurisdiction to assure implementation of [its]

rulings,” and held that “[i]ssues relating to fishing outside the case area, on-

reservation fishing, or non-anadromous fish are clearly within” the court’s subject-

matter jurisdiction and could be brought before the court in a separate action. Id.

(emphasis added). It concluded that the parties’ requests for determinations

regarding non-anadromous fish were within the scope of its continuing jurisdiction,

notwithstanding the limitations in Final Decision I:

[E]quity favors prevention of a multiplicity of actions, and in the opinion of this court, proper exercise of its jurisdiction permits, and efficient administration of justice requires, this court to deal with matters related to, but not included within, Final Decision # 1 such as possible treaty-right nonanadromous fishing.

Id. (emphasis added).

The district court followed this holding in 1977 when, at Quinault’s request,

it entered orders allocating fishing opportunities in Grays Harbor, which was

10


outside the original case area. See 459 F. Supp. at 1097, 1101. This Court

affirmed, holding that, in exercising its continuing jurisdiction, the district court

had the authority to expand the case area beyond that defined in the pretrial order

and original decree. Puget Sound Gillnetters, 573 F.2d at 1131.

Pacific Ocean waters outside of the State’s three-mile jurisdiction have been

within the case area ever since. For example, in 1977, Makah invoked the court’s

continuing jurisdiction under paragraph 25(f) of the 1974 injunction to obtain a

determination of its ocean U&A. MSER 363. The court defined those grounds,

notwithstanding that they extended far beyond the State’s waters. U.S. v.

Washington, 626 F. Supp. 1405, 1466-68 (W.D. Wash. 1985). This Court

affirmed, finding that the determination was “within the continuing jurisdiction of

the district court.” U.S. v. Washington, 730 F.2d 1314, 1316 (9th Cir. 1984).

Since then, the district court has exercised its jurisdiction to adjudicate treaty

fishing rights for halibut, shellfish, blackcod, and Pacific whiting, including treaty

fishing rights to harvest these species in Pacific Ocean waters outside the State.

See, e.g., MSER 262-69 (halibut); U.S. v. Washington, 873 F. Supp. 1422 (W.D.

Wash. 1994), aff’d in part, rev’d in part, 157 F.3d 630 (9th Cir. 1998) (shellfish);

MSER 226-27 (blackcod); U.S. v. Washington, 143 F. Supp. 2d 1218 (W.D. Wash.

2001) (Pacific whiting). In the shellfish subproceeding, the court described its

continuing jurisdiction as “jurisdiction to hear other unresolved issues arising out

11


of the Stevens Treaties,” without reference to the species or case-area limitations in

Final Decision I. 873 F. Supp. at 1427.

4. Quileute, Quinault and Hoh’s Invocation of the District Court’s Jurisdiction in Pacific Ocean Waters outside the Original Case Area.

Quileute, Quinault and Hoh have invoked the district court’s continuing

jurisdiction in Pacific Ocean waters beyond the initial case area on many

occasions. For example, in 1981, 1985, 1987, 1989 and 1990, Quileute, Quinault

and Hoh sought and obtained court approval for agreements that permitted their

members to fish by invitation in each other’s “ocean fishing areas.”2 The ocean

fishing areas were based on federal regulations (discussed below), and extended far

beyond the State’s jurisdiction.3 Although Quileute, Quinault and Hoh now

suggest (QQ Br. at 45-46; Hoh Br. at 43) that they sought the court’s approval for

these agreements only because a portion of their “ocean fishing areas” was within

the original case area, they cite nothing in their requests for relief or the court’s

orders that even hints at this limitation. Notably, as discussed above, by the time

2 See ER 766-67; MSER 351-52; MSER 348-49; ER 643-44, 650-51; MSER 346-47; ER 633; MSER 343-45; MSER 341-42. 3 See, e.g, ER 643-44, 650-51. Makah expressed serious reservations about the Quileute, Quinault and Hoh invitational fishery and reserved its rights to object to the legality and implementation of that fishery; however, it agreed, in the interests of inter-tribal cooperation, not to interpose such objections for the duration of the ocean management agreements before the Court. See, e.g., ER 639 (¶ 11). The 1990 Agreement stated it did “not affect the parties’ respective positions on any tribe’s usual and accustomed areas.” ER 637 (¶ 5.a).

12


Quileute, Quinault and Hoh submitted these requests, the court had held (at

Quinault’s request) that its continuing jurisdiction was not limited to the original

case area.

Quileute, Quinault and Hoh also invoked the district court’s jurisdiction in

proceedings involving halibut and blackcod fisheries. These fisheries take place in

ocean waters beyond the State’s jurisdiction. According to Quileute’s Natural

Resources Director, these fish can only be harvested more than three miles

offshore:

Q. Are any of the Tribe's fisheries limited to three miles from shore? A. No. Q. Why not? A. Well, the resources is outside of three miles. The black cod and the halibut are definitely outside of the three-mile area, so in order to access the -- that resource, you go outside the three miles generally.

MSER 38 (emphasis added); see also MSER 433 (Quileute and Quinault travel

“upwards of 40 miles from the coast” to halibut grounds); MSER 427-28 (Quileute

fishermen must make “60-mile journey” to harvest halibut); MSER 251-52

(blackcod is found “approximately 30 to 40 miles offshore”).

In the halibut proceedings,4 Quileute, Quinault, Hoh and other tribes secured

court orders increasing federal allocations to the treaty fishery5 and numerous

orders resolving inter-tribal management and allocation disputes.6

4 In 1985, Makah sought judicial review of federal regulations allocating fishing opportunities for halibut between treaty and non-treaty fishermen. See Makah v.

13


In the blackcod litigation, Quinault, Hoh and Makah sought and obtained

two preliminary injunctions restricting Quileute’s use of pot gear in the fishery;

Quileute, Quinault and Makah sought and obtained court approval of a settlement

agreement; and Quileute, Quinault and Makah invoked the court’s jurisdiction to

enforce that agreement and the court did so.7 Quinault also sought a preliminary

injunction restricting Quileute fishing south of Destruction Island. MSER 245-46.

Quileute agreed the court had jurisdiction to determine whether it had a right to

fish in such waters, MSER 231, but argued the parties should be required to “file a

separate subproceeding requesting a determination of the Quileute Tribe’s ocean

fishing grounds,” MSER 403. The court found Quinault had raised serious

Mosbacher, No. C85-1606 (W.D. Wash.). In 1992, the Mosbacher court held that threshold issues concerning the nature and extent of Makah’s treaty right to take halibut had to be resolved in U.S. v. Washington pursuant to the district court’s continuing jurisdiction – even though the case involved fishing for a non-anadromous species outside the initial case area – and transferred the case to the presiding judge in U.S. v. Washington. MSER 307-11, 385-86. Makah then initiated Subproceeding 92-1 in U.S. v. Washington, seeking a determination that it had a treaty right to take halibut, that the Stevens Treaties secured to the tribes the right to harvest one-half of the halibut available for harvest in their U&A, and that Makah’s U&A was previously adjudicated in this case. MSER 297-98. 5 MSER 295; MSER 289-94; MSER 281; MSER 270-71; MSER 263, 266-68; MSER 160-63. 6 See MSER 325-29; MSER 330-40; MSER 318-20; MSER 312-13; MSER 145; MSER 139; MSER 135; MSER 91; MSER 80; MSER 77; MSER 72-76; MSER 66-70. 7 See, e.g., MSER 245-46; MSER 231, 237; MSER 227; MSER 224-25; MSER 217-18; MSER 214-16; MSER 197-204; MSER 194-95; MSER 185-93; MSER 169-84; MSER 164-68.

14


questions regarding Quileute’s right to fish south of Destruction Island, held that a

separate proceeding was not necessary to resolve the matter, and “asked the parties

to confer with each other about the best way to present the issue to the court for

final determination.” MSER 224-25 n.4. However, the dispute over the blackcod

fishery was settled before that matter was resolved.

In repeatedly invoking district court jurisdiction in the halibut and blackcod

proceedings, Quileute, Quinault and Hoh recognized that the district court’s

jurisdiction was not limited to the original case area. They do not now mention the

halibut proceedings, but argue the blackcod proceedings involved only an

“interpretation of Judge Boldt’s findings in Decision I regarding the northern and

southern boundary of Quileute’s adjudicated usual and accustomed fishing

locations,” and that “[t]reaty fishing locations outside the case area were not at

issue.” QQ Br. at 43 (emphasis in original). However, since the fishery takes

place some 30 to 40 miles offshore, the U&A dispute (as well as the management

and allocation disputes) necessarily involved waters far outside the original case

area. At the time, Quileute understood that the other tribes were “requesting a

determination of the Quileute Tribe’s ocean fishing grounds.” MSER 403

(emphasis added).

15


Quileute also invoked the district court’s jurisdiction to enforce its fishing

rights in ocean waters beyond the State’s jurisdiction in the crab fishery, asking the

court to “delay the non-tribal fleet from fishing” in the following area:

Northern Boundary: Sand Point (48º07’36” N. lat.) Southern Boundary: Destruction Island (47º40’30” N. lat.) Western Boundary: 125º44’00” W. long. (approximately 40 miles offshore)

MSER 41 (emphasis added). In support of this request, Quileute alleged its U&A

“extends from the northern tip of Lake Ozette south to the Quinault River, and

westward at least forty miles offshore,” and that “Judge Boldt established these

boundaries in Finding of Facts 39 and 108.” MSER 47 (emphasis added). It

asserted that the requested delay in the non-tribal fishery would “give [Quileute]

the best opportunity to catch 50% of the harvestable crab” from that portion of

Washington catch area 59A-1 described above, MSER 54-55, i.e., in waters

extending far beyond the original case area.

Although Quileute and Quinault now argue (Br. at 44) that Quileute did not

seek a determination of its U&A in the crab proceeding (but instead relied on

federal regulations to establish those grounds), there is no question that it sought

relief in waters far beyond the original case area, once again recognizing that the

original case-area limitation no longer constrained the district court’s continuing

jurisdiction.

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5. Federal Regulations Identifying Quileute, Quinault and Hoh Ocean Fishing Places.

The Secretary of Commerce, acting through the National Marine Fisheries

Service (NMFS), has promulgated regulations identifying Quileute, Quinault and

Hoh’s ocean fishing places, including a western boundary. The western boundary,

however, is simply an extension of Makah’s western boundary as adjudicated by

the district court. See 61 Fed. Reg. 28786, 28789 (June 6, 1996).

The first rule to include a western boundary for Quileute, Quinault, and Hoh

was adopted in 1986 for purposes of describing Subarea 2A-1, the tribal area for

halibut fishing. 51 Fed. Reg. 16471 (May 2, 1986). The rule does not explain the

basis for the western boundary, and states that Subarea 2A-1 is “not intended to

describe precisely the historic off-reservation halibut fishing places of all tribes, as

the location of those places has not been determined.” Id. at 16471. The rule

states that “boundaries of a tribe’s fishery may be revised as ordered by a Federal

court.” Id. at 16472.

Quileute and Hoh submitted a joint comment on the halibut rule, expressing

serious concern with the portion of the rule establishing their treaty fishing area.

MSER 19-20. They noted that “no court, and no agreement, has ever established a

western boundary for our treaty fishing areas.” MSER 20. They alleged their

fishermen went 100 to 200 miles out into the ocean before and during treaty times,

and stated “[t]here is no legal basis to establish a western boundary … and there is

17


no factual basis to support your regulatory provision.” MSER 20. Quinault

submitted a separate letter stating it shared Quileute and Hoh’s concerns regarding

the western boundary. MSER 21.8

NMFS adopted the same boundaries as part of salmon fishing regulations in

1987, again with no discussion of the basis for the western boundaries. 52 Fed.

Reg. 17264 (May 6, 1987). Quileute submitted a comment protesting the use of

the western boundary from the halibut regulation for the salmon fishery. It called

the use of the Makah western boundary “unlawful and unsupported by anything in

the record,” and requested that the NMFS “show, consistent with our adjudicated

treaty rights, that our adjudicated treaty usual and accustomed fishing area [has]

only tentative northern and southern boundaries at this point and time, with no

western nor eastern boundaries.” MSER 25.

In 1996, NMFS included the same boundaries in a rule describing the

framework process for establishing tribal groundfish fisheries. The preamble

describes the delineation of the western boundary:

Under this rule, NMFS recognizes the same U&A areas that have been implemented in Federal salmon and halibut regulations for a number of years. The States and the Quileute tribe point out that the western boundary has only been adjudicated for the Makah tribe. NMFS agrees. NMFS, however, in establishing ocean management areas, has taken the adjudicated western boundary for the Makah tribe,

8 Quileute and Quinault’s current assertion (Br. at 54) that the regulatory boundaries were based on evidence submitted by them is belied by these comments.

18


and extended it south as the western boundary for the other three ocean treaty tribes. NMFS believes this is a reasonable accommodation of the tribal fishing rights, absent more specific guidance from a court. NMFS regulations, including this regulation, contain the notation that the boundaries of the U&A may be revised by order of the court.

61 Fed. Reg. at 28789.

Quileute and Quinault submitted comments on the proposed rule expressing

concern with the use of the boundaries previously adopted (for halibut and salmon

fisheries) for groundfish fisheries. Quinault stated it did not object to the

description of the U&As in the regulation “if and only if, the description is without

prejudice to proceedings properly brought under the continuing jurisdiction of the

District Court in United States v. Washington to clarify or revise tribal usual and

accustomed fishing areas….” MSER 31. Quileute commented that it disagreed

that the boundaries described in the regulation represented the extent of Quileute’s

U&A, but would agree that the boundaries “represent federally established

regulatory lines for the purposes of ocean fisheries management.” MSER 34.

In the preamble to the final rule, NMFS agreed with this characterization of

its regulation, noting that the boundaries may be revised by order of the court.

Specifically, NMFS noted that the rule is “without prejudice to proceedings in

United States v. Washington” and stated that it “will modify the boundaries in the

regulation consistent with orders of the Federal Court.” 61 Fed. Reg. at 28789.

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On these bases, it is the United States’ position that NMFS’ “regulations

addressing the Quinault and Quileute U&A’s were not intended or interpreted to be

a conclusive boundary determination, but instead were a ‘reasonable

accommodation’ necessary for the agency’s management of the ocean fisheries in

the absence of a judicial determination of the boundaries of the Tribes’ U&As.”

MSER 14. According to the United States, “[i]t is expected that the regulations

could – and would – be changed to comport with a subsequent federal court order

further defining the Tribes’ U&A’s.” MSER 14. Further, NMFS “has consistently

assumed that [the district court in this case] would be the forum to adjudicate the

western boundaries of the Quileute, Quinault, and Hoh usual and accustomed

fishing grounds as it has done throughout the history of Untied States v.

Washington in the context of other tribal U&A boundary disputes.” MSER 14.

6. The Midwater Trawlers Litigation.

In Midwater Trawlers Coop. v. Dep’t of Commerce, 139 F. Supp. 2d 1136

(W.D. Wash. 2000), aff’d in part, rev’d in part, 282 F.3d 710 (9th Cir. 2002), non-

treaty fishing organizations (Midwater) and Washington challenged the description

of Quileute, Quinault, and Hoh’s U&As in NMFS’ groundfish regulation. NMFS

and Washington filed a stipulation pursuant to which Washington withdrew that

challenge and NMFS confirmed its understanding of the regulation:

As stated in the preamble to the Final Rule, the identification of usual and accustomed grounds in 50 C.F.R. § 663.24(c) [now 660.324(c)] is

20


not intended to and does not prejudice the court proceedings in United States v. Washington. The Final Rule is not intended to and does not establish the usual and accustomed fishing grounds and stations for the purposes of the United States v. Washington litigation. As such, the Final Rule does not have any presumptive or precedential effect on any future or concurrent litigation in United States v. Washington to establish the location of the usual and accustomed fishing grounds for the Quileute or Hoh Indian Tribes or the Quinault Nation. The Final Rule is not intended to and does not alter (or affect in any way) any burden of proof that may apply in any United States v. Washington subproceeding.

MSER 157.

Unlike the State, Midwater did not withdraw its challenge to this part of the

regulation. In addressing this challenge, the district court upheld NMFS’

designation of Quileute, Quinault and Hoh’s western boundary on the grounds that,

“[i]n the absence of any judicial determination in United States v. Washington to

the contrary, it was ... reasonable for the federal defendants to conclude that using

the same salmon and halibut U & As for Pacific whiting was lawful.” 139 F. Supp.

2d at 1144 (emphasis added).9

In the ensuing appeal, Quileute and Quinault argued that the challenge to the

regulatory description of their western boundary raised three issues, one of which

was whether this Court should “confine the scope of its review to the Secretary’s

actions, and defer a determination of Stevens Treaty fishing rights to the U.S. v.

Washington Court, which retains continuing jurisdiction.” MSER 106 (emphasis

9 This portion of the district court’s opinion was vacated on appeal. See note 10 below.

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added). Quileute and Quinault explained that the U.S. v. Washington court

retained continuing jurisdiction to determine the extent of their U&A, that the

regulation could have no binding effect in the event of such a determination, and

that the regulation was only intended to be an “accommodation” of their treaty

right, which remained subject to revision by the U.S. v. Washington court. They

also asserted that, because of their sovereign immunity, U.S. v. Washington was the

only forum in which Midwater could obtain such a determination. And, they

argued that, in contrast to U.S. v. Washington, a proceeding for judicial review of a

Magnuson Act regulation was ill suited to a determination of treaty fishing rights.

These points are found in the following passages from Quileute’s and

Quinault’s amicus brief:

Appellant Midwater seeks to expand the narrow scope of deferential judicial review under the Magnuson Act/APA to allow a determination of the treaty rights of Coastal Tribes not party to this litigation that could conflict with rulings in ongoing U.S. v. Washington (No. 9213) proceedings.9… 9Midwater may attempt intervention in the U.S. v. Washington proceedings, but, because of the sovereign immunity of the Coastal Tribes, it could not otherwise challenge tribal fishing rights. … The Magnuson Act was not intended by Congress to provide a forum for citizen challenges to tribal treaty rights.… Recognizing that NMFS could not bind the Courts with its description of U&As, the Framework Regulation defers to the U.S. v. Washington Court, stating that “[National Marine Fisheries Service] will modify the boundaries

22


in the regulation consistent with orders of the Federal Court.” 61 Fed. Reg. at 28787, 28789….10

10Acknowledging that the Secretary’s accommodation of treaty rights would have no binding effect on the U.S. v. Washington proceedings, the State of Washington entered into a stipulation and dismissal of its challenge to the western boundaries of the Coastal Tribes’ U&As.… Because the U.S. v. Washington Court had not determined the western boundary of the Quileute, Hoh and Quinault Tribes, the Framework Regulation’s description of this boundary was intended as a reasonable accommodation of self-executing treaty rights based on existing law and the record before the agency, including ten years of Magnuson Act regulations utilizing the same boundary. … By contrast to U.S. v. Washington, which has retained continuing jurisdiction over the determination of Stevens Treaty fishing rights, 384 F.Supp. at 419,13 this APA review of informal rulemaking would be ill suited for such a determination.… In this APA review, the Court does not have the benefit of a District Court’s historical findings of fact regarding the intent of the parties at the time of the treaty.… Nor can this Court review extensive anthropological and archaeological testimony about treaty-time fishing harvest and the parties’ understanding of treaty language. 13As stated in Greene v. United States, 996 F.2d 973, 997-98 (9th Cir. 1993) Midwater’s request for an adjudication of treaty fishing rights ignores

the continuing jurisdiction of the [U.S. v. Washington] district court. Many tribes participate in this comprehensive judicial and administrative scheme. That is the forum that will resolve ultimately any attempt to reallocate treaty fishing rights and that is the forum where the Tulalip and all other interested parties can have their say.

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MSER 119-22 (some footnotes omitted) (emphasis added). On these bases,

Quileute and Quinault argued that this Court “should confine the scope of its

review to whether the Framework Regulation’s accommodation of tribal treaty

rights, given the facts and caselaw known to the Secretary, was arbitrary and

capricious.” MSER 122-23.

Quileute and Quinault also argued that Midwater lacked standing to

challenge the regulatory description of their U&As. MSER 117-19. This Court

agreed, holding that Midwater had “not suffered the requisite injury in fact and

lacks standing to challenge the portion of the regulation identifying U & As with

respect to the Hoh, Quileute, and Quinault Tribes.” Midwater Trawlers, 282 F.3d

at 716.10

7. Makah’s Request for Determination.

Makah’s RFD alleges that it developed a treaty fishery for Pacific whiting in

1996 and, from 1996 through 2007, was the only tribe to participate in the fishery.

ER 573 (¶ 3.c.i). Throughout that period, NMFS made whiting allocations to

10 This holding effectively vacated the district court’s ruling that had upheld the portion of the regulation identifying Quileute, Quinault and Hoh U&A; if, as this Court held, Midwater lacked standing to challenge that part of the rule, the district court had no jurisdiction to determine its validity. 282 F.3d at 716. Quileute and Quinault’s current suggestion (Br. at 48) that this Court “affirmed” the district court’s ruling on this point is therefore incorrect; in the passage they cite (id. at 718), this Court upheld the recognition of fishing areas more than three miles off-shore based on a discussion of Makah, not Quileute or Quinault, U&A.

24


Makah based on requests from Makah to accommodate the needs of its fishery.

Id.; see Midwater Trawlers, 282 F.3d at 710. NMFS determined that Makah’s

requests were within its treaty entitlement, and that determination was upheld by

this Court. ER 574 (¶ 3.c.i); see Midwater Trawlers Coop. v. Dep’t of Commerce,

393 F.3d 994, 1003-05 (9th Cir. 2004).

A major challenge in managing the whiting fishery is bycatch of ESA-listed

salmon and overfished rockfish stocks. See generally Starbound LLC v.

Guitierrez, No. C07-0910-JCC, 2008 WL 1752219 (W.D. Wash. Apr. 15, 2008).

To reduce bycatch, Makah requires use of salmon excluder devices, conducts test

fisheries to determine whether bycatch is low enough to open its fishery, restricts

night fishing, closes areas with high bycatch rates, and requires full retention and

surrender of all rockfish. ER 574 (¶ 3.c.ii). These measures slow the harvest of

Pacific whiting, particularly early in the season when bycatch rates are higher. Id.;

Starbound at *6.

In 2008, Quileute and Quinault informed NMFS they intended to participate

in the whiting fishery. ER 574 (¶ 3.c.iii). Makah requested that each tribe provide

an estimate of its harvests, and that the tribes seek separate allocations to meet the

needs of their respective fisheries. ER 576 (¶ 3.c.vi). This would allow each tribe

to prosecute its fishery at the most opportune time and avoid a race for fish that

could result in excessive bycatch. See Starbound at *2, 6 (sector allocations in

25


non-treaty fishery designed to minimize incentives for race for fish and prevent

early-season “disaster tow” with excessive bycatch).

Quileute and Quinault rejected Makah’s proposals. ER 576 (¶ 3.c.vi). They

asserted: (1) they are entitled to harvest a portion of any Indian treaty allocation in

the fishery, even an allocation requested by Makah and designed to meet the needs

of Makah’s fishery; (2) NMFS has no legal authority to make, and Quileute and

Quinault will not agree to, separate allocations for each tribe; (3) because whiting

migrate from south to north in the spring, Quileute and Quinault intend to harvest

whiting before they reach Makah fishing grounds, preempting Makah’s fishery;

and (4) Quileute and Quinault intend to begin participating in the whiting fishery in

2009 or 2010, and ultimately expect to have 5 or 6 catcher boats each, with

anticipated annual harvests ranging from 35,000 to 42,000 metric tons per tribe.

ER 574-75 (¶ 3.c.iii).

Quileute and Quinault’s intent to enter the fishery on these terms presented a

substantial threat to Makah’s treaty fishery. ER 575 (¶ 3.c.iv). Even if NMFS

were to increase the overall treaty allocation, the harvest strategy and levels

proposed by Quileute and Quinault would result in a substantial reduction in

Makah’s harvest. Id. And, by forcing Makah into a race for fish, Quileute and

Quinault would compel Makah to fish earlier in the season, resulting in increased

bycatch of overfished stocks. Id.

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Faced with this threat, Makah informed Quileute and Quinault that their

approach could trigger the need for a judicial determination of their ocean U&A.

ER 576 (¶ 3.c.vii). To determine whether their U&A extended far enough offshore

to enable them to participate in the whiting fishery, Makah undertook, at its own

expense, to assemble archaeological, anthropological, historical and ethnographic

information regarding their treaty-time fisheries. ER 577 (¶ 3.c.ix). That

information indicated that Quileute and Quinault’s treaty-time fishing grounds

extended no more than 5 to 10 miles offshore, which would be insufficient to

permit them to preempt or otherwise threaten Makah’s whiting fishery. ER 577

(¶¶ 3.c.ix & x). This information also indicated to Makah, for the first time, that

on-going Quileute and Quinault fisheries for salmon, halibut and blackcod, which

compete directly with Makah fisheries for the same species, were being prosecuted

outside Quileute and Quinault’s U&A. ER 578 (¶ 3.d).

Makah made additional efforts to resolve its concerns with Quileute and

Quinault, but those efforts were unsuccessful. ER 576-77 (¶ 3.c.viii). As of the

filing date of Makah’s RFD, neither Quileute nor Quinault had notified Makah of

any change in their plans to enter the fishery, reject any provision for separate

tribal allocations, and seek to preempt the Makah fishery. ER 576 (¶ 3.c.vii).

Under these circumstances, Makah requested that the district court

determine the boundaries of Quileute and Quinault’s ocean U&A. ER 578 (¶ 4).

27


In particular, Makah requested that the court define the western boundary of such

areas, which Makah believes is approximately 5 to 10 miles offshore, and the

northern boundary of Quileute U&A, which Makah believes is a line drawn

westerly from the vicinity of Norwegian Memorial. Id. Makah did not seek a

determination of Hoh’s ocean U&A because Hoh was not fishing (or threatening to

fish) in a manner that harmed Makah. ER 570 n.1.

8. Procedural History and Rulings Presented for Review.

Quileute and Quinault filed motions to dismiss Makah’s RFD on sovereign

immunity and other grounds. ER 536-42, 553-56. Hoh filed a response in support

of their motions. MSER 440-49. The district court denied the motions on

September 28, 2011. ER 39-43. With respect to sovereign immunity, the court

first noted that Quileute and Quinault had joined Hoh in a motion to restrict

Makah’s ocean salmon fishery in 1983 and obtained a ruling that Makah “‘waived

its sovereign immunity and consented to full adjudication of its treaty fishing

rights when it intervened in this case seeking a determination of those rights, and

asking that the Court exercise its equitable powers to protect those rights.’” ER 41

(quoting U.S. v. Washington, 626 F. Supp. at 1471) (emphasis added).

The court also noted that, when the court proposed a sunset order that would

have closed the case, Quileute and Quinault joined other tribes, including Hoh, in

opposing the order, expressing the concern that, “if the case were closed, ‘tribes

28


could be immune from future suits by other tribes (for example to resolve

intertribal allocation issues) or the State.’” ER 41 (quoting ER 606) (emphasis

added). The opposing tribes added that “‘[t]he northwest fisheries litigation makes

it clear that the parties to this case, each of them and all of them, by seeking

equitable relief, have waived their sovereign immunity at least to the extent that

modification[s] of the original decrees are necessary.’” ER 41 (quoting ER 607).

The court explained that Quileute and Quinault benefitted from its ruling on

the tribes’ waiver of sovereign immunity in their 1983 dispute with Makah, and

joined other tribes in arguing that continuation of the case is necessary because of

the waivers of sovereign immunity that are in place. ER 42. Accordingly, it held

that “[t]hey will not now be heard to assert that their sovereign immunity bars

consideration of the Makah request.” Id.

In a separate section of its September 28, 2011, order, addressing Quinault’s

laches defense, the court stated that it viewed the case as requiring an interpretation

of Judge Boldt’s findings regarding Quileute and Quinault’s ocean U&A and,

therefore, the evidence would be limited to the record before Judge Boldt. ER 42-

43. However, the court also stated that Makah had properly invoked its

jurisdiction under Paragraph 25(a)(6). ER 43.

On March 24, 2012, in response to a motion for reconsideration filed by

three other tribes, the court clarified that the evidence is limited to the record

29


before Judge Boldt in Paragraph 25(a)(1) proceedings, while new evidence can be

admitted in Paragraph 25(a)(6) proceedings. ER 34-35. It held Makah had

properly invoked its jurisdiction under Paragraphs 25(a)(1) and (6), but stated that

it continued to view the case as requiring an interpretation of Judge Boldt’s

findings and the evidence would be limited to the record before Judge Boldt. ER

35.

Neither Quileute, Quinault nor Hoh appealed or sought reconsideration or

clarification of the September 28, 2011, or March 24, 2012, orders.

On June 18, 2012, Hoh filed a motion to intervene in the subproceeding,

arguing that a determination of Quileute’s ocean U&A would affect Hoh’s ability

to litigate its own ocean U&A. HER 12-16. The district court denied Hoh’s

motion on August 9, 2012, noting that Hoh was already “an existing party to the

case” and was “entitled to fully participate in this subproceeding without formally

intervening….” HER 18; see also ER 13. Hoh did not appeal.

Makah then moved for partial summary judgment that: (1) it had standing to

request a determination of Quileute and Quinault’s ocean U&A; and (2) Judge

Boldt’s findings did not specifically determine the location of those grounds (or

include any waters more than three miles offshore). ER 392. On these bases,

Makah asked the court to retain jurisdiction to determine the location of Quileute

and Quinault’s ocean U&A under Paragraph 25(a)(6). ER 396, 425.

30


Quileute, Quinault and Hoh opposed Makah’s motion. Among other things,

they reasserted their claim that sovereign immunity bars Makah’s request for relief.

Quinault also opposed Makah’s motion on the grounds that the federal regulations

defining its ocean fishing grounds deprived the district court of jurisdiction to

determine the location of those grounds. See ER 359, 378-80; MSER 1; HER 21.

The district court partially granted Makah’s motion on July 8, 2013. ER 24-

32. The court did not interpret Judge Boldt’s findings, but held that, if “the issues

[in the case] cannot be resolved in a Paragraph 25(a)(1) proceeding, the Court

could find that the Quinault and Quileute U&A’s were not specifically determined

by Judge Boldt, and turn to Paragraph 25(a)(6) for further proceedings.” ER 29.

In so holding, the court did not reconsider its earlier sovereign immunity ruling; it

stated that “[t]he sovereign immunity issue was decided in the Court’s Order on

Motion to Dismiss” and that it “will not revisit or reconsider that ruling.” ER 30.

As to the federal regulations, the court stated that “U&A’s cannot be established by

federal regulators or agencies; that would deny due process to other tribes and

upset the very foundation of this case.” ER 32.

Quileute and Quinault filed a motion, supported by Hoh, for reconsideration

of this order, again arguing their sovereign immunity and the federal regulations

barred Makah’s request for relief. ER 326-29; HER 26-28. The court denied their

motion on September 3, 2013. See ER 17-23. The court stated that “[w]ith respect

31


to the sovereign immunity issue, the two Tribes have in the motion simply

reiterated their positions taken and argued in the briefing and oral argument on the

Makah motion,” and that the “motion for reconsideration on the issue of sovereign

immunity is both untimely and lacking in merit.” ER 18-19; see also ER 19 n.1

(“[a]s to the issue of sovereign immunity, this motion for reconsideration is

untimely, and it could be denied on that basis alone”).

Quileute, Quinault and Hoh now appeal from those portions of the court’s

July 8 and September 3, 2013, orders in which the court declined to reconsider its

earlier denial of Quileute and Quinault’s sovereign immunity claim and rejected

Quinault’s argument regarding the federal fishing regulations. Hoh also appeals

the court’s order denying Hoh’s motion to intervene in the subproceeding.

SUMMARY OF ARGUMENT

This Court lacks jurisdiction over this appeal. Quileute and Quinault moved

to dismiss Makah’s request for determination on sovereign immunity grounds.

The district court denied their motion. Although an order denying a claim of

sovereign immunity is an appealable collateral order, Quileute and Quinault did

not appeal. Instead, over one year later, they sought to renew their sovereign

immunity claim in response to Makah’s motion for partial summary judgment on

other issues. The district court found Quileute and Quinault’s attempt to reassert

that claim was an untimely motion for reconsideration and declined to revisit the

32


issue. The denial of an untimely motion for reconsideration is not an appealable

collateral order.

The district court also ruled that the federal fishing regulations do not

deprive it of jurisdiction to determine Quileute and Quinault’s ocean U&A.

Although Quileute and Quinault seek to appeal that ruling, they make no claim that

it is a collateral order, and articulate no other basis for interlocutory appellate

jurisdiction over it. This Court also lacks jurisdiction over the Hoh intervention

order because: (1) it is not a collateral order; (2) Hoh did not file a timely appeal;

and (3) it is not within this Court’s pendent jurisdiction.

If this Court finds it has jurisdiction, it should affirm. When Quileute,

Quinault and Hoh intervened in this case in 1971, their complaints sought an

adjudication of their U&A without geographic limitation, and thus expressly

waived their sovereign immunity with respect to such an adjudication. Makah’s

current request for determination is not far afield from, but rather falls squarely

within, the scope of the case as set forth in their complaints.

In 1983, in seeking to restrict Makah’s ocean fishery outside the original

case area, Quileute, Quinault, and Hoh secured a ruling that the tribes’ waivers of

immunity in this case extend to inter-tribal disputes and to a full adjudication of

their treaty fishing rights. That has been the law of the case ever since, and clearly

encompasses a determination of their ocean fishing grounds.

33


In 1993, Quileute, Quinault and Hoh joined other tribes in representing to

the district court that their waivers of immunity extended to inter-tribal disputes

involving any issue validly within the scope of the case. By 1993, the short-lived

case-area limitation was no longer in effect; indeed, by then, Quileute, Quinault

and Hoh repeatedly had invoked the district court’s jurisdiction with respect to

treaty fishing rights in ocean waters outside the original case area. Accordingly,

their express waivers of immunity extended to all U&A determinations, without

geographic limitation.

Since 1993, Quileute, Quinault and Hoh have continued to invoke the

district court’s jurisdiction to enforce their treaty fishing rights in ocean waters

outside the State in disputes with the Federal Government, the State and other

tribes. In so doing, they necessarily waived their immunity for purposes of a

determination whether they have fishing rights in such waters in the first place.

If this were not enough, in Midwater Trawlers, Quileute and Quinault

represented to this Court that the district court retains jurisdiction in this case for

the specific purpose of determining their ocean U&A, and that they have waived

their immunity for such purposes.

Quileute and Quinault’s claim that federal regulations “determined” their

ocean U&A and deprived the district court of jurisdiction to make such a

determination also lacks merit. When those regulations were first promulgated,

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Quileute and Quinault insisted there was no factual basis for them. The United

States has stated repeatedly that the regulations are not a determination of U&A,

but only an interim accommodation pending a determination of ocean U&A in this

case; indeed, Quileute and Quinault have said so as well. Quileute and Quinault

identify nothing in the regulations that purports to displace the district court’s

statutory jurisdiction and do not explain how they could do so.

Finally, Hoh’s claim that the district court erred in denying intervention is

specious. Hoh has been an intervenor in this since 1971, and the district court

expressly stated that Hoh is entitled to participate fully in this subproceeding.

There was no error, and no injury to Hoh, in the district court’s decision not to

further complicate this case by requiring existing parties to file motions to

intervene in each subproceeding.

ARGUMENT

1. This Court Lacks Jurisdiction.

This Court has jurisdiction over appeals from “final decisions of the district

courts.” 28 U.S.C. § 1291. Generally, a final decision under § 1291 ends the

litigation on the merits and leaves nothing for the court to do but execute the

judgment. SEC v. Capital Consultants, 453 F.3d 1166, 1170 (9th Cir. 2006).

Because the orders challenged here did not end the litigation on the merits, they are

not final orders within the general rule.

35


Quileute and Quinault contend (Br. at 4-5) that, to the extent the July 8 and

September 3, 2013, orders refused to reconsider the district court’s earlier denial of

their sovereign immunity defense, they are appealable collateral orders. A

collateral order must “conclusively determine a disputed question; … resolve an

important issue completely separate from the merits of the action; and … [be]

effectively unreviewable on appeal from a final judgment. SEC, 453 F.3d at 1171.

These requirements are to be applied strictly, and only a narrow class of decisions

satisfies them. Id. “As with all final decisions, the time for appeal of an

appealable collateral order begins to run on the date the court enters the order.” Id.

at 1173.

An order denying a claim of sovereign immunity is usually a collateral

order. E.g., Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1091 (9th

Cir. 2007). Here, however, the district court denied Quileute and Quinault’s

sovereign immunity claim in its September 28, 2011, order, ER 41-42, and did not

revisit that issue in its July 8 or September 3, 2013, orders. See ER 30 (declining

to “revisit” the “sovereign immunity issue” because it was “decided in the Court’s

Order on Motion to Dismiss”); ER 18-19 & n.1 (“motion for reconsideration is

untimely” as to sovereign immunity issue).

Because the July 8 and September 3, 2013, orders did not “determine” or

“resolve” the sovereign immunity issue as required by SEC, 435 F.3d at 1171, (but

36


merely noted that the court had already resolved that issue), they are not

appealable collateral orders. To hold otherwise would enable litigants to

circumvent Rule 4(a)’s “mandatory and jurisdictional” deadlines for filing an

appeal from a collateral order, see Harmston v. San Francisco, 627 F.3d 1273,

1279 (9th Cir. 2010), by simply filing an untimely motion for reconsideration of

that order. See Classic Concepts v. Linen Source, 716 F.3d 1282, 1285 (9th Cir.

2013) (untimely post-judgment request for additional relief does not extend

deadline for appealing judgment); Pena v. Meeker, 298 Fed. Appx. 562, 562-63

(9th Cir. 2008) (untimely motion for reconsideration does not extend deadline for

appealing collateral order denying qualified immunity claim).

This case is unlike Behrens v. Pelletier, 516 U.S. 299 (1996), and its

progeny. In Behrens, the Court held that, because a defendant could raise a

qualified immunity defense in a motion to dismiss (on the grounds that the

plaintiff’s allegations did not state a claim of violation of clearly established law)

and in a later motion for summary judgment (on the grounds that, even if the

plaintiff adequately alleged the commission of acts that violated clearly established

law, discovery failed to uncover evidence sufficient to create a genuine issue as to

whether the defendant in fact committed those acts), the defendant could appeal an

order rejecting the defense at either (or both) stage(s) of the case. Id. at 306-07;

see also Knox v. Sw. Airlines, 124 F.3d 1103, 1106 (9th Cir. 1997) (order on second

37


qualified-immunity summary judgment motion on an expanded record is

appealable).

Here, the district court’s September 28, 2011, order rejecting Quileute and

Quinault’s sovereign immunity defense left nothing to be decided at a later stage of

the case; the court held that Quileute and Quinault had waived their immunity by

virtue of their intervention, prior participation and representations in this case. ER

41-42. The issue did not resurface in a summary judgment motion based on facts

unearthed in discovery or an expanded record, but in response to Makah’s motion

for partial summary judgment on other issues. And, when it resurfaced, Quileute

and Quinault presented no new facts or arguments, but simply reiterated the same

arguments they had made in their motion to dismiss.

Quileute and Quinault contend (Br. at 22-24) that, because the court’s earlier

orders stated the case would proceed under Paragraph 25(a)(1), the court was

required to revisit the sovereign immunity issue when it held the case might also

proceed under Paragraph 25(a)(6). In particular, they claim (Br. at 22) that

allowing the case to proceed under Paragraph 25(a)(6) “necessarily change[d] the

predicate legal basis for the court’s previous order denying Quinault and Quileute’s

sovereign immunity and laches defenses.” However, there was no change in “the

predicate legal basis” for the court’s sovereign immunity ruling; that ruling never

mentioned Paragraph 25(a)(1) and drew no distinction between a Paragraph

38


25(a)(1) and 25(a)(6) proceeding. See ER 41-42. The court discussed Paragraph

25(a)(1) only in the context of the laches defense. ER 42-43.

Quileute and Quinault also suggest (Br. at 20) that, because the court had

limited the case to a proceeding under Paragraph 25(a)(1), its earlier denial of their

sovereign immunity claim was limited to waters within the original case area, that

is, waters within three miles of shore that were subject to the jurisdiction of the

State of Washington. This reading of the court’s order is not credible. First,

because Quileute and Quinault did not claim their sovereign immunity barred

Makah’s request with respect to waters within the initial case area (see Br. at 22),

this reading would mean the court’s emphatic denial of their sovereign immunity

defense was utterly meaningless – under this reading, the court denied the

sovereign immunity defense only with respect to those waters as to which Quileute

and Quinault did not assert sovereign immunity.

Second, as the district court explained:

Nowhere did the Court limit its findings as to the Tribes’ waiver of their sovereign immunity to the original case area or to Paragraph 25(a)(1) proceedings. Rather, the Court construed the waiver broadly, declaring that the Tribes “would not now be heard to assert that their sovereign immunity bars consideration of the Makah request,” a request which extended to determination of the Tribes’ usual and accustomed fishing grounds in the Pacific Ocean. Dkt. 86 at pp. 1, 4 [ER 38, 42]. Even if the Tribes could have misunderstood the Court’s decision as limiting their waiver to Paragraph 25(a)(1) proceedings, any question over the scope of the waiver was settled by the Court’s decision on March 14, 2012, amending its September 28 Order to state that the Court’s jurisdiction “has been properly invoked by

39


Makah under section (1) and (6) of Paragraph 25 of the Permanent Injunction.” Dkt. # 104, p.2 [ER 35].

ER 11-12. Indeed, it is nonsensical for Quileute and Quinault to argue that the

district court’s sovereign immunity order was limited to a U&A determination

within State waters. As Quileute and Quinault now insist, “Makah’s request does

not involve fishing within Washington State waters.” Mot. for Stay at 14 (Feb. 7,

2014).

Third, contrary to Quileute and Quinault’s argument (see, e.g., Br. at 20),

when the district court stated that the case would proceed under Paragraph

25(a)(1), it had not considered or made any determination regarding the geographic

scope of Judge Boldt’s findings regarding Quileute and Quinault’s ocean U&A.

As discussed above (see p. 8), those findings included “adjacent” ocean waters, but

did not state expressly whether such waters were limited to the original case area.

On at least one occasion Judge Boldt expressly made findings regarding U&A

outside the original “case area.” See 384 F. Supp. at 374-75. Moreover, Quileute

had argued that Judge Boldt’s findings regarding its U&A extended well beyond

the original case area, MSER 47, and Quinault has since argued that the evidence

before Judge Boldt showed its U&A “extends offshore beyond the three mile case

area,” ER 370. Thus, in directing the parties to proceed under Paragraph 25(a)(1),

the court did not limit the proceeding to the original case area, but simply required

the parties to address the location of Quileute and Quinault’s U&A as determined

40


by Judge Boldt – whether inside or outside the original case area – before

considering the location of U&A (if any) not determined by him.

In sum, because the July 8 and September 3, 2013, orders did not

“determine” or “resolve” the sovereign immunity defense, but merely denied as

untimely Quileute and Quinault’s attempt to relitigate that defense, they are not

appealable collateral orders.11

Quileute and Quinault also seek to appeal the district court’s rejection of

Quinault’s claim that federal fishing regulations deprived the court of jurisdiction

to determine Quileute and Quinault’s ocean fishing places. However, that ruling is

not an appealable collateral order because it is effectively reviewable on appeal

from a final judgment. See, e.g., U.S. v. Layton, 645 F.2d 681, 683 (9th Cir. 1981)

(challenge to the subject matter jurisdiction of the trial court “clearly fails to satisfy

the third requirement [that the claim cannot be reviewed on appeal from a final

order]”). Quileute and Quinault make no claim that this aspect of the court’s July

8 and September 3, 2013, orders is a collateral order (see Br. at 4-5), and suggest

no other basis for appellate jurisdiction over it.12

11 Even if these orders were appealable, they would be subject to review only for abuse of discretion. See, e.g., Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989). For the reasons just discussed, the district court did not abuse its discretion in declining to reconsider its sovereign immunity ruling. 12 Quileute and Quinault asked the district court to certify its rulings for immediate appeal under 28 U.S.C. § 1292(b), ER 332-33, but the district court declined to do so, ER 20-23.

41


This Court also lacks jurisdiction to review the order denying Hoh’s

intervention. Because Hoh is a party, even if the order limited its ability to

participate in the case, the order can be reviewed effectively on appeal from a final

judgment and, therefore, is not a collateral order. See ER 12-13 (discussing

Stringfellow v. Concerned Neighbors, 480 U.S. 370, 373-75 (1987)); see also

Churchill County v. Babbitt, 150 F.3d 1072, 1081 (9th Cir.), amended on denial of

rehearing, 158 F.3d 491 (9th Cir. 1998), abrogated in other respects, Wilderness

Soc’y v. Forest Service, 630 F.3d 1171 (9th Cir. 2011). Moreover, if it is a

collateral order, Hoh’s appeal was not timely. See SEC, 453 F.3d at 1173 (time to

appeal begins to run on date court enters order). The order was entered on August

9, 2012, HER 18, and Hoh did not file its notice of appeal until October 3, 2013,

over one year later, HER 50.

This Court also lacks pendent jurisdiction over Hoh’s appeal. “[A]ppellate

courts should exercise restraint in reviewing on interlocutory appeal otherwise

non-appealable orders....’” Meredith v. Oregon, 321 F.3d 807, 812 (9th Cir. 2003)

(quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 49-50 (1995)). This

Court exercises pendent jurisdiction only when “an otherwise non-appealable

ruling is ‘inextricably intertwined’ with or ‘necessary to ensure meaningful review

of’ the order properly before us on interlocutory appeal….” Id.

Two issues are not “inextricably intertwined” if we must apply different legal standards to each issue. Rather, the legal theories on which the issues

42


advance must either (a) be so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal, or (b) resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue.

Cunningham v. Gates, 229 F.3d 1271, 1285 (9th Cir. 2000). Here, it is not

necessary to decide Hoh’s intervention appeal to decide the sovereign immunity

claims, and resolution of the sovereign immunity claims will not necessarily

resolve Hoh’s intervention claim.

2. Quileute, Quinault and Hoh Waived Their Immunity.

If this Court determines it has jurisdiction to review the district court’s

sovereign immunity ruling, it should affirm. When a tribe initiates (or intervenes

in) a lawsuit, it consents to “the court’s adjudication of the merits of that particular

controversy.” McClendon v. U.S., 885 F.2d 627, 630 (9th Cir. 1989). By

intervening in this case and asking the district court to adjudicate the existence of

their treaty right to take fish at “usual and accustomed places” without geographic

limitation, Quileute, Quinault and Hoh expressly consented to the court’s

adjudication of the location of those places. See id. (“By initiating the 1972 action,

the Tribe accepted the risk that it would be bound by an adverse determination of

ownership of the disputed land.”); see also In re White, 139 F.3d 1268, 1271 (9th

Cir. 1998); Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 420 (9th

Cir. 1989); Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1244-45 (8th Cir. 1995);

43


Oneida Tribe v. Village of Hobart, 500 F. Supp. 2d 1143, 1149-50 (E.D. Wis.

2007).

Quileute and Quinault contest this conclusion on two grounds: (a) that their

consent was limited to disputes with the State, and did not extend to disputes with

other tribes; and (b) that their consent was limited to waters within the original

case area, and did not extend to ocean waters outside that area. See, e.g., Br. at 34-

35. Neither argument has merit. 13

a. Quileute, Quinault and Hoh’s Waivers Extend to Inter-tribal Disputes.

It is well-established that the tribes’ waivers of immunity in this case extend

to disputes with other tribes. Quileute, Quinault and Hoh established this

proposition in 1983, and expressly confirmed it in 1993.

In 1983, Quileute, Quinault and Hoh moved for an order restricting Makah’s

ocean troll fishery for Coho salmon, including the portion being prosecuted outside

the original case area. See U.S. v. Washington, 626 F. Supp. at 1470; MSER 359-

13 Reiterating Quileute and Quinault’s arguments, Hoh contends its sovereign immunity also bars Makah’s RFD. See Hoh Br. at 20-45. However, Hoh cites no authority for the proposition that Hoh’s immunity shields other tribes from a determination of their U&A. Fed. R. Civ. P. 19 presents no obstacle to Makah’s claim—Hoh is already a party to this case and is entitled to participate fully in this subproceeding. See HER 18, ER 13. Further, as discussed in the text, just as Quileute and Quinault have expressly waived their immunity for purposes of an adjudication of their ocean U&A, so has Hoh. And, because Hoh intervened for the express purpose of protecting its interest in intertribal disputes, MSER 410, 423, it should not be permitted to assert immunity to block resolution of such a dispute.

44


60. Makah moved to dismiss, asserting sovereign immunity. Id. The court denied

the motion, stating this was “not the first proceeding in which this Court has been

asked to determine the rights of one tribe as against another,” and that sovereign

immunity did not bar relief. Id. at 1470-71. In particular, the court held Makah

“waived its immunity and consented to a full adjudication of its treaty fishing

rights when it intervened in this case seeking a determination of those rights, and

asking that the Court exercise its equitable powers to protect those rights.” Id. at

1471 (citing U.S. v. Oregon, 657 F.2d 1009 (9th Cir. 1981)). No party appealed

this ruling, and it has been the law of the case ever since.

Quileute, Quinault and Hoh confirmed that their waivers of immunity

extended to disputes with other tribes in 1993, when they joined other tribes in

opposing a proposed sunset order that would have ended the case. ER 600-28.

One ground on which the tribes objected to the sunset order was that “[t]he tribes

could be immune from future suits by other tribes (for example, to resolve

intertribal allocation issues) or the State.” ER 606 (emphasis added). The tribes

explained that this would not be a concern if this case continued in active status:

The northwest fisheries litigation makes it clear that the parties to this case, each of them and all of them, by seeking equitable relief, have waived their sovereign immunity at least to the extent that modification of the original decrees are necessary. In United States v. Oregon, the Court specifically held that the Yakima Tribe had waived sovereign immunity as to the “complete adjudication by the federal court of the issues in litigation between the intervenor and the adverse party.” To hold otherwise, said the court, would impermissibly

45


violate a central tenet of equity jurisprudence, that of flexible decrees. This Court has followed the Ninth Circuit decision in the “Order Denying Makah Indian Tribe’s Motion to Dismiss” of May 25, 1983. There the Makah Tribe moved to dismiss actions brought by other tribes requesting declaratory judgments and preliminary injunctions and other relief. The court held that sovereign immunity was not a bar to the relief requested by one tribe against another tribe. The court noted that the Makah Tribe had “waived its immunity and consented to a full adjudication of its treaty fishing rights when it intervened in this case seeking determination of those rights, and asking that the court exercise tis equitable powers to protect those rights.” These as well as other rulings in this case make it clear that that the governmental parties to this case are all amenable to claims and counterclaims within this lawsuit, at least as to those issues which are validly within the scope of the case.

ER 607-08 (emphasis added) (citations omitted).

The determination of tribal U&A is “validly within the scope of this case,”

and is a basic element in the “full adjudication” of each tribe’s treaty fishing rights.

See pp. 7-8 above (describing Final Decision I). Thus, in 1993, when Quileute,

Quinault and Hoh stated that their waivers of immunity extended to claims “by one

tribe against another tribe,” as long as such claims were “validly within the scope

of this case,” and cited the district court’s 1983 ruling regarding the scope of

Makah’s waiver in support of that proposition, they expressly confirmed that their

waivers of immunity extended to inter-tribal disputes regarding their U&A.14

14 Quileute and Quinault cite a passage in the tribes’ response to the proposed sunset order in which the tribes described the district court as being “involved in achieving lasting institutional change by reshaping the State of Washington’s

46


Quileute and Quinault seek to distinguish the district court’s 1983 decision

regarding Makah’s waiver of immunity on the grounds that the underlying dispute

involved “resource allocation … based on each tribe’s already-adjudicated fishing

rights.” Br. at 41. They assert that “[t]here is no legal authority or logical reason

to conclude that the court’s exercise of jurisdiction over allocation/interception

disputes somehow operates to waive Quinault and Quileute’s immunity as to

adjudication of their ocean fishing places outside the case area.” Id. at 42

(emphasis in original); see also Hoh Br. at 39-40.

We discuss the geographical scope of Quileute, Quinault and Hoh’s waivers

below. We show here that the fact that the 1983 dispute involved resource

allocation does not alter the conclusion that these tribes waived their immunity for

purposes of inter-tribal disputes involving the location of their U&A. This is so for

at least two reasons.

First, consistent with the plain language of the treaties, the district court held

that the exercise of each tribe’s treaty fishing right is “limited … by the

geographical extent of [its] usual and accustomed fishing grounds.” 384 F. Supp.

at 402; see also id. at 332. If the waivers in place in this case permit one tribe to

historical and pervasive disregard of the tribes’ treaty rights, and in enforcing the supremacy of federal treaty law.” Br. at 41 (citing ER 603). This passage, which goes on the describe the broad scope of the district court’s continuing jurisdiction, see ER 603-04, nowhere suggests that inter-tribal disputes are somehow outside the scope of this case, and cannot overcome the tribes’ express statements that they had waived their immunity for purposes of such disputes.

47


sue another on the theory that the latter is taking too many fish in its U&A, they

surely permit one tribe to sue another on the theory that the latter is fishing outside

of its U&A altogether (i.e., that it is fishing in an area in which it has no right to

fish in the first place). Notably, the district court and this Court have adjudicated

many inter-tribal disputes over U&A with no assertion (until now) by any

defending tribe of sovereign immunity. See, e.g., Muckleshoot, 141 F.3d 1355;

U.S. v. Muckleshoot Tribe, 235 F.3d 429 (9th Cir. 2000); Lummi, 235 F.3d 443;

Upper Skagit Tribe v. Washington, 590 F.3d 1020 (9th Cir. 2010).

Second, as set forth above, Quileute, Quinault and Hoh joined other tribes in

1993 in representing to the court that its 1983 decision “held that sovereign

immunity was not a bar to the relief requested by one tribe against another tribe,”

without limitation to resource-allocation disputes. The tribes informed the court

that their waivers of immunity vis-à-vis other tribes extended “at least as to those

issues which are validly within the scope of the case,” and there is no question that

U&A determinations are “validly within the scope” of this case.

For these reasons, Quileute, Quinault and Hoh’s assertion that their waivers

of immunity do not extend to inter-tribal disputes involving their U&A lacks merit.

b. Quileute, Quinault and Hoh’s Waivers Extend to Waters outside the Original Case Area.

48


Quileute, Quinault and Hoh also argue that their waivers of immunity do not

extend to waters outside the original case area. This argument fails for several

reasons.

First, when Quileute, Quinault and Hoh intervened in this case – at a time

when there was no limitation on the case area – they sought an adjudication of their

U&A without geographic limitation (and Quileute expressly claimed its U&A

included ocean waters outside the State). See pp. 6-7 above. Although Quileute,

Quinault and Hoh contend that treaty fishing locations outside state waters were

not part of the initial complaint, QQ Br. at 34; Hoh Br. at 34, they never discuss

their own complaints in intervention, which sought an adjudication of their U&A

without geographic limitation. In seeking such an adjudication, Quileute, Quinault

and Hoh waived their immunity for purposes of such an adjudication.

Second, when Quileute, Quinault and Hoh stated in 1993 that their waivers

of immunity extended “at least as to those issues that are validly within the scope

of the case,” the case was not limited to waters within the State. By then, the

district court had: held its continuing jurisdiction was not limited to the original

case area; adjudicated Makah U&A in ocean waters outside the State; restricted

Makah’s ocean fishery in a proceeding initiated by Quileute, Quinault and Hoh;

and entered multiple orders approving Quileute, Quinault and Hoh’s ocean

compacts. See pp. 8-13 above. Thus, in representing to the court that their waivers

49


of immunity extended “at least as to those issues validly within the scope of the

case,” Quileute, Quinault and Hoh confirmed that they had waived their immunity

for purposes of an adjudication of their ocean U&A.

Quileute and Quinault focus on the passage in the tribes’ joint response to

the proposed sunset order in which they stated that they had waived their immunity

“at least to the extent that modification[s] of the original decrees are necessary,”

and argue that “[t]here is no factual or legal basis to find that Quinault and

Quileute’s federally recognized fishing locations outside the case area are in any

way part of the original decree.” Br. at 40 (emphasis in original). However, by

1993, both this Court and the Supreme Court had held that the district court was

required to consider treaty fisheries subject to the jurisdiction of the United States

in implementing its original decree. See pp. 8-9 above. To the extent that a

determination of treaty fishing places in such waters constituted a “modification”

of the original decrees, it was required by these holdings.

More importantly, Quileute and Quinault disregard other statements in the

joint tribal response to the proposed sunset order, in which they cited the district

court’s holding that Makah’s waiver extended to “a full adjudication of its treaty

fishing rights” to describe their own waivers of immunity, and asserted that their

waivers extended “as least … to those issues that are validly within the scope of

the case.” Because a determination of treaty fishing places in the Pacific Ocean

50


was essential to a “full adjudication” of the tribes’ treaty fishing rights and “validly

within the scope of the case” when Quileute and Quinault made these statements,

their express waivers of immunity encompass such a determination. See, e.g.,

Oneida Tribe, 500 F. Supp. 2d at 1149 (“By invoking the jurisdiction of the Court

to ‘declare the rights and other legal relations of the parties,’ the Tribe has

expressly waived its immunity as to that issue.”); see also McClendon, 885 F.2d at

630; U.S. v. Oregon, 657 F.2d at 1014.

Third, since 1993, in halibut, blackcod and crab proceedings, Quileute,

Quinault and Hoh repeatedly have invoked the district court’s jurisdiction to

enforce their treaty rights in ocean waters outside the State and, in so doing,

necessarily consented to an adjudication of the location of such rights. See pp. 13-

16 above. Quileute and Quinault suggest there was no waiver of immunity in the

crab subproceeding because Quileute was relying on federal fishing regulations to

establish its ocean U&A. See, e.g., Br. at 44 (citing ER 586-87). However, as

discussed above, Quileute was expressly seeking relief in waters up to 40 miles

offshore. It is true that Quileute asserted that the court should rely on the

definition of its fishing areas in federal regulations, and therefore did not need to

make a judicial determination of those grounds. But a tribe’s theory of the case

cannot limit its waiver of immunity in this manner. For example, if a tribe sues to

enforce a contract, it necessarily waives its immunity for purposes of a

51


determination of the validity of the contract. The fact that the tribe asserts that the

contract’s validity has already been determined in administrative proceedings does

not mean that the tribe’s sovereign immunity somehow prevents the court from

determining the validity of the very contract the tribe has placed at issue in the

case. Cf. White, 139 F.3d at 1272 (A tribe “cannot reclaim immunity just because

the case took a turn that was not to its liking.”) (citing U.S. v. Oregon, 657 F.2d at

1014); Rupp, 45 F.3d at 1245 (“We will not transmogrify the doctrine of tribal

immunity into one which dictates that the tribe never loses a lawsuit.”) (citing U.S.

v. Oregon, 657 F.2d at 1014). So here, in repeatedly seeking court orders to

enforce their treaty fishing rights in ocean waters, Quileute, Quinault and Hoh

necessarily consented to a determination of whether they have such rights in the

first place.

Fourth, in the Midwater Trawlers litigation, Quileute and Quinault

affirmatively represented to this Court that the district court has jurisdiction to

determine their ocean U&A – and that they have waived their sovereign immunity

from such a determination. See pp. 20-24 above. Quileute and Quinault now seek

to avoid the clear import of these representations, as if they had their fingers

crossed behind their backs when they made them.

As Quileute and Quinault point out (Br. at 49), their representations were

made in a section of their amicus brief in which they asserted that Midwater had

52


standing under the Magnuson Act and APA “only to challenge agency action.”

See MSER 119. And, it is true, as Quileute and Quinault also point out (Br. at 49),

that they argued that Midwater could not convert its challenge to agency action

(the regulation defining Quileute and Quinault’s ocean fishing places), into an

inquiry whether “the parties to the Stevens Treaties had intended to extinguish

tribal fishing rights more than three miles from the Washington coast; and whether

the term ‘fish’ in the Stevens Treaties included Pacific whiting.” MSER 121.

However, that is not all they said. In describing the proper scope of

Midwater’s challenge to the regulation, Quileute and Quinault asserted:

Recognizing that NMFS could not bind the Courts with its description of U&As, the Framework Regulation defers to the U.S. v. Washington Court, stating the “NMFS will modify the boundaries in the regulation consistent with orders of the Federal Court.” Because the U.S. v. Washington Court had not determined the western boundary of the Quileute, Hoh and Quinault Tribes, the Framework Regulation’s description of this boundary was intended as a reasonable accommodation of self-executing treaty rights based on existing law and the record before the agency, including ten years of Magnuson Act regulations utilizing the same boundary.

MSER 120-21 (citations and footnotes omitted).

Quileute and Quinault also argued that the U.S. v. Washington court was in a

better position to resolve the “treaty interpretation issues” raised by Midwater

because it had “retained continuing jurisdiction over the determination of Stevens

Treaty fishing rights,” could make “historical findings of fact regarding the intent

53


of the parties at the time of the treaty,” and “review extensive anthropological and

archaeological testimony about treaty-time fishing harvests and the parties’

understanding of treaty language.” MSER 122.

These statements clearly and unambiguously pointed to U.S. v. Washington

as the forum to adjudicate their “Stevens Treaty fishing rights,” including their

U&A boundaries, and were in no way limited to the questions whether “the parties

to the Stevens Treaties had intended to extinguish tribal fishing rights more than

three miles from the Washington coast” or “whether the term ‘fish’ in the Stevens

Treaties included Pacific whiting.” MSER 121. Quileute and Quinault argued to

this Court that NMFS’ regulation “could not bind the Courts with its description of

U&As,” and that the regulation “defers to the U.S. v. Washington court” to

adjudicate tribal U&A. MSER 120 (emphasis added). They added that the U.S. v.

Washington court has continuing jurisdiction “over the determination of Stevens

Treaty fishing rights” and to resolve “treaty interpretation issues.” MSER 122.

The determination of Quileute and Quinault’s ocean U&A is central to a

determination of their “Stevens Treaty fishing rights” and is a quintessential “treaty

interpretation issue.” If there could be any doubt about this, Quileute and Quinault

removed it in another section of their amicus brief, where they stated that “[t]he

United States and the Coastal Tribes concur that the Framework Regulations’

description of the western boundary of the Coastal Tribes’ U&As is a reasonable

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accommodation until a judicial determination is made in U.S. v. Washington.”

MSER 125 (emphasis added).

Quileute and Quinault suggest that, even if they stated that the U.S. v.

Washington court is the proper forum to adjudicate their ocean U&A, they silently

reserved the right to assert sovereign immunity to block any such determination.

See Br. at 50. However, they did not neglect to mention sovereign immunity in

Midwater; to the contrary, they asserted their immunity would not prevent a

challenge to their tribal fishing rights in U.S. v. Washington. See MSER 120-21

n.9 (“Midwater may attempt intervention in the U.S. v. Washington proceedings,

but, because of the sovereign immunity of the Coastal Tribes, it could not

otherwise challenge tribal fishing rights.”) (emphasis added).

Moreover, in 1993 Quileute, Quinault and Hoh assured the district court in

this case that they had waived their sovereign immunity for purposes of inter-tribal

disputes, at least as to those issues which are validly within the scope of the case.

See pp. 45-46 above. In representing to this Court that U.S. v. Washington is the

proper forum in which to adjudicate their ocean U&A, they made it clear that such

an adjudication is “validly within the scope of the case” and, therefore, subject to

their express waivers of immunity.

3. Federal Regulations Do Not Deprive the District Court of Subject Matter Jurisdiction.

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Quileute and Quinault assert (Br. at 51-56) that an adjudication of their

ocean fishing places is unnecessary due to the self-executing nature of their treaty

rights and the federal regulations defining their fishing places. However, the issue

here is not whether an adjudication is “necessary” before Quinault and Quileute

may fish pursuant to their treaty rights and the federal regulations, but whether the

district court has jurisdiction to determine the location of their ocean U&A when

requested to do so.

As discussed above, the district court expressly retained jurisdiction to

determine, at the request of “any” party, “the location of any of a tribe’s usual and

accustomed fishing grounds not specifically determined by Final Decision #I.”

384 F. Supp. at 419. Quileute and Quinault do not dispute this, but suggest that the

federal regulations somehow deprive the district court of its ability to exercise this

jurisdiction. However, they do not explain or cite any authority for the proposition

that, in promulgating the regulations, the Secretary of Commerce had legal

authority to alter the district court’s statutory subject matter jurisdiction or

otherwise deprive the district court of its expressly retained jurisdiction.

Moreover, Quileute and Quinault cite nothing in the language of the

regulations that suggests they were intended to have this effect. To the contrary, as

discussed above, the United States made it clear that the regulations were not

intended to and do not prevent a determination of a tribe’s U&A in this case. See

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pp. 17-21 above. Notably, this was Quinault and Quileute’s own long-held view of

the regulations (which they reiterated in the Midwater Trawlers litigation), until

reversing course in this subproceeding. See pp. 54-55 above.15

Thus, whether or not an adjudication is “necessary” before Quileute and

Quinault may exercise their treaty fishing rights pursuant to the federal regulations,

nothing in those regulations prevents the district court from making such an

adjudication when its jurisdiction is properly invoked in this case. This distinction

is supported by the court’s December 31, 1974, and February 26, 1975, decisions

regarding the status of additional tribes that had not participated in the original

trial. In those decisions, the court held that the additional tribes had treaty fishing

rights, but did not adjudicate their U&A. See 459 F. Supp. at 1039-42. Quinault

and Quileute quote the following sentence from these decisions (e.g., Br. at 12,

55), but, tellingly, omit the italicized language at the end of the sentence:

The absence of a determination that a specific fishing area is a usual and accustomed fishing place of a particular tribe shall not preclude the tribe or its members from exercising treaty fishing rights at such location if opened under a tribal regulation filed pursuant to paragraph 1 of the Interim Plan, subject to the state’s authority to contest the location consistent with the prior judgment and orders of this court.

15 The Federal Register passage on which Quinault and Quileute now rely (Br. at 55) addresses the question whether an adjudication is necessary before the U.S. promulgates federal fishing regulations implementing tribal treaty rights; it does not address the separate question whether such regulations somehow deprive the district court of its retained jurisdiction to make such an adjudication.

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459 F. Supp. at 1042 (emphasis added). The full sentence makes it clear that,

while the court approved a mechanism for the additional tribes to exercise their

treaty fishing rights on an interim basis before adjudicating their U&A, it clearly

retained jurisdiction to determine the location of those grounds in the event of a

dispute. The court proceeded to make U&A determinations for the additional

tribes, see 459 F. Supp. at 1048-50, 1058-60, and then reminded all tribes that they

could not expand their U&A “by filing fishing regulations merely including such

additional places,” but instead must follow “the procedures of paragraph 25,” id. at

1068-69. Thus, while the self-executing nature of the treaties and the federal

regulations may allow Quileute, Quinault and Hoh – alone among all U.S. v.

Washington tribes – to exercise their treaty fishing rights in waters that have not

been adjudicated to be their U&A, they in no way prevent the district court from

determining the location of such grounds when requested to do pursuant to

Paragraph 25.16

Quileute and Quinault cite (Br. at 49 n.14) dicta in Makah v. Verity, 910

F.2d 555, 560 (9th Cir. 1990), in which this Court questioned whether a challenge

to federal regulation of ocean fishing could be brought in U.S. v. Washington.

However, Makah is not challenging the federal regulations in this case, because

16 This also explains why no other tribe has had its U&A adjudicated in a proceeding commenced by another tribe – namely, because it is the law of the case that no other tribe can fish in any waters beyond those adjudicated in Final Decision I without first requesting such an adjudication itself.

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those regulations (as the United States, Quileute and Quinault have acknowledged)

are only interim accommodations of Quileute and Quinault’s treaty rights pending

an adjudication of their ocean U&A in this case. See pp. 17-21, 54-55 above.

Notably, after this Court’s decision in Verity, the district court held that the treaty-

right issues raised in Makah’s challenge to federal regulation of the ocean halibut

fishery had to be litigated in U.S. v. Washington, and Quileute and Quinault joined

in such litigation. See note 4 and accompanying text above. In their Midwater

Trawlers brief, Quileute and Quinault persuasively explained why the underlying

treaty issues must be litigated in U.S. v. Washington, see pp. 22-23 above, and that

is precisely the path Makah followed here. Similarly, in the blackcod litigation,

Quileute asserted that the proper procedure to obtain an adjudication of its ocean

U&A was to initiate a subproceeding in this case, see p. 14 above, exactly as

Makah has done.

In now suggesting (Br. at 56) that Makah’s exclusive remedy was to

challenge the federal regulations, Quileute and Quinault are playing a shell game.17

When the regulations were challenged in Midwater, they insisted that the

underlying treaty issues had to be litigated in U.S. v. Washington. Now that Makah

has requested an adjudication in U.S. v. Washington, they argue that Makah’s

17 Quileute and Quinault also suggest Makah has waited too long to seek an adjudication of their U&A. However, Quileute and Quinault have not appealed the district court’s denial of Quinault’s laches claim, see pp. 29-30 above, and suggest no jurisdictional basis for an interlocutory appeal of that ruling.

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exclusive remedy was to challenge the regulations. For the reasons discussed

above, there is no merit to this argument.

Finally, Quileute and Quinault cite dicta in U.S. v. Washington, 573 F.3d

701, 709 (9th Cir. 2009), in which this Court posed questions regarding the district

court’s continuing jurisdiction. However, this Court did not “decide whether the

1974 decree should now be released, modified, or dissolved, because no party has

asked [it] to do so,” 573 F.3d at 711 (emphasis added), and this Court has

continued to affirm the district court’s jurisdiction over inter-tribal U&A disputes

since then, see Upper Skagit, 590 F.3d 1020. Quileute and Quinault have not

asked either the district court or this Court to release, modify or dissolve the 1974

decree or otherwise terminate this case; instead, they seek a unique exemption

from the district court’s continuing jurisdiction in which they alone of 21 plaintiff-

intervenor tribes would be immune from the court’s well-established jurisdiction to

adjudicate U&A. For the reasons stated above, their plea for a special exemption

from that jurisdiction lacks merit.

4. Hoh’s Claim that the District Court Erred in Denying Intervention Lacks Merit.

Hoh asserts (Br. at 45-52) the district court erred in denying its motion to

intervene in this subproceeding because the denial somehow limited its ability to

participate in the subproceeding. In fact, the court denied Hoh’s motion because

Hoh is “entitled to fully participate in this subproceeding without formally

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intervening as a responding party,” HER 18 (emphasis added), and because

Paragraph 25 “does not contemplate intervention of the type requested here.” HER

18 (emphasis added).

Hoh claims (Br. at 47-48) the remainder of the order casts doubt on its

ability to “fully participate” because the court stated that Hoh can alert the court to

any implications that determinations in this subproceeding might have on Hoh’s

fishing rights through “memoranda filed in their status as a participant under

Paragraph 25,” and can present facts that distinguish Hoh’s fishing rights from

those of Quileute in a separate subproceeding addressing its rights. HER 18.

These statements do not limit Hoh’s right to participate fully in this subproceeding;

rather, they simply confirm that what is at issue here is the extent of Quileute’s

(and Quinault’s) U&A. If Hoh wants to interpose jurisdictional defenses, conduct

discovery, introduce evidence, or otherwise participate fully in the litigation of that

issue, it can do so.

The district court confirmed this reading of its order in response to Hoh’s

motion for a stay pending appeal, in which Hoh cited the same statements in the

court’s order denying intervention as it does here. In response, the court stated that

it “did not limit the Hoh’s ability to fully participate in the subproceeding but

simply clarified its scope as limited to the determination of Quileute and

Quinault’s usual and accustomed fishing grounds. ER 13.

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Hoh also claims (Br. at 50) that a provision in a general order on Paragraph

25 procedures limits the ability of “interested parties” to raise jurisdictional

defenses or appeal adverse rulings. However, nothing in that order limits the

participation of interested parties in those or any other ways, see HER 93-100, and

no such limitations could overcome the district court’s specific statements that Hoh

is entitled to “fully participate” in this subproceeding. Hoh has, in fact, been able

to raise jurisdictional defenses, including sovereign immunity, and appeal adverse

determinations. See, e.g., MSER 440-49, HER 49-75.

Because there is no limit on Hoh’s ability to participate fully in this

subproceeding, there is no merit to its challenge to the district court’s order

denying intervention.

CONCLUSION

This Court should dismiss this appeal for lack of jurisdiction. If the Court

finds it has jurisdiction, it should affirm.

Dated: February 18, 2014.

ZIONTZ CHESTNUT

s/ Marc D. Slonim

Marc D. Slonim Joshua Osborne-Klein

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STATEMENT OF RELATED CASES

Appellee Makah Indian Tribe is aware of the following related cases

pending in this court that, under Ninth Circuit Rule 28-2.6, may be related to this

case: (1) Lower Elwha Klallam Indian Tribe v. Lummi Nation, No. 12-35936, (2)

Tulalip Tribes v. Suquamish Indian Tribe, No. 13-35773, and (3) U.S v.

Washington (In re Culverts), No. 13-35474. Like this case, these three appeals

arise from the district court’s exercise of its continuing jurisdiction in U.S. v.

Washington. Each appeal is from a separate district court subproceeding (Nos.

2:11-sp-00002-RSM, 2:05-sp-00004-RSM, 2:01-sp-01- RSM). The first two

appeals involve inter-tribal disputes over usual-and-accustomed fishing places,

while the third involves a dispute between the United States and the Tribes, on the

one hand, and the State of Washington, on the other. The issues on appeal in these

cases are not otherwise related to the issues on appeal in this case.


ZIONTZ CHESTNUT

s/ Marc D. Slonim

Marc D. Slonim, WSBA No. 11181 Attorney for Makah Indian Tribe

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CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation of Fed. R.

App. P. 32(a)(7)(B), Circuit Rule 28-4, and the Court’s order of February 18, 2014,

(Dkt. 31) because this brief contains 15,399 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

I certify that this brief complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)

because this brief has been prepared in a proportionally spaced typeface using

Microsoft Word Times New Roman 14 point font.


ZIONTZ CHESTNUT

s/ Marc D. Slonim


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CERTIFICATE OF SERVICE

I hereby certify that on February 18, 2014, I electronically filed the

foregoing Brief of Appellee Makah Indian Tribe with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the appellate

CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.


ZIONTZ CHESTNUT

s/ Marc D. Slonim


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