D.C. No. CV-70-09213-BJR D.C. No. CV-70-09213-BJR
Appeals from the United States District Court for the Western District of Washington Barbara J. Rothstein, Chief Judge, Presiding Argued and Submitted November 5, 1997 Seattle, Washington
Before: Betty B. Fletcher and Diarmuid F. O'Scannlain, Circuit Judges, and William W Schwarzer,* Senior District Judge.
The opinion of the court was delivered by: Schwarzer, Senior District Judge:
Opinion by Judge Schwarzer; Partial Concurrence and Partial Dissent by Judge O'Scannlain
This appeal brings before us two disputes, (1) between the Muckleshoot Indian Tribe ("Muckleshoot") and the Swinomish Indian Tribal Community ("Swinomish") and (2) between the Muckleshoot and the Lummi Indian Nation ("Lummi"), over the interpretation of a decree adjudicating Indian treaty fishing rights in Washington state in respect to salmon and defining the "usual and accustomed fishing places " of the parties to this appeal in respect thereto. United States v. Washington, 384 F. Supp. 312, 360 (W.D. Wash. 1974) (Boldt, J.) [hereinafter "Decision I" ]; United States v. Washington, 459 F. Supp. 1020, 1049 (W.D. Wash. 1978) (Boldt, J.) [hereinafter "Decision II" ]. The district court granted summary judgment adopting the interpretations claimed by Muckleshoot. For the reasons stated below, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
In September 1986, Muckleshoot, along with other south Puget Sound tribes, invoked the district court's continuing jurisdiction under Decision I by filing a request for determination ("RFD"), initiating subproceeding 86-5 to seek "equitable allocation" of the treaty share of the case-area salmon harvest. The petitioning south Puget Sound tribes asked for an injunction restraining the fisheries of certain north Puget Sound tribes, including Lummi and Swinomish, that intercepted south Puget Sound salmon on their return migration through the ocean, the Strait of Juan de Fuca and Puget Sound.
After lengthy and unsuccessful mediation efforts, the north Puget Sound tribes in February 1995 moved to dismiss subproceeding 86-5. At the same time, Muckleshoot filed a motion for partial summary judgment against Swinomish and Lummi seeking rulings that (1) Swinomish's "usual and accustomed fishing grounds and places," as adjudicated in Finding of Fact No. 6 ("FF 6") in Decision II, 459 F. Supp. at 1049, did not include waters within Puget Sound Commercial Salmon Management and Catch Reporting Area 10 ("Area 10")*fn1 and (2) Lummi's "usual and accustomed fishing grounds and places," as adjudicated in Finding of Fact No. 46 ("FF 46") in Decision I, 384 F. Supp. at 360, did not include waters within Area 10.
The district court granted Muckleshoot's motion for partial summary judgment against Swinomish, determining that the latter tribe's fishing locations under Decision II did not include waters in Area 10. At the same time, the court continued the motion against Lummi to permit that tribe to depose Dr. Barbara Lane, an expert witness whose anthropological report on historical tribal fishing grounds was the major item of evidence relied on by Judge Boldt in Decision I. 384 F. Supp. at 350. The district court subsequently granted Muckleshoot's motion for partial summary judgment against Lummi, determining that Lummi's fishing locations under Decision I did not include waters in Area 10. It also dismissed sub-proceeding 86-5 without prejudice but subject to limitations on refiling.
I. Appellate Jurisdiction and Standard of Review
The district court had subject matter jurisdiction of the underlying proceedings pursuant to 28 U.S.C. SS 1345, 1362 and 1331. In Decision I, the district court had retained continuing jurisdiction to administer the decree and to ...