United States District Court, W.D. Washington
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For Skokomish Indian Tribe, a federally recognized Indian Tribe, Plaintiff: Earle David Lees, III, Skokomish Tribal Attorney, SKOKOMISH, WA.
For Peter Goldmark, Washington State Commissioner of Public Lands, Administrator for the Department of Natural Resources, and member of the Board of Natural Resources, Lenny Young, Supervisor for the Department of Natural Resources, Bob Ferguson, Attorney General for the State of Washington, Phil Anderson, Director of the Washington Department of Fish and Wildlife, Bruce Bjork, Assistant Director of the Washington Department of Fish and Wildlife and Chief of WDFW Enforcement, Defendants: Joseph V Panesko, LEAD ATTORNEY, ATTORNEY GENERAL'S OFFICE, NATURAL RESOURCES, OLYMPIA, WA; Joseph Earl Shorin, III, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, NATURAL RESOURCES DIVISION, OLYMPIA, WA; Terence A Pruit, LEAD ATTORNEY, Neil Lynn Wise, ATTORNEY GENERAL OF WASHINGTON (40100-OLY), OLYMPIA, WA.
For Michael Dorcy, Prosecutor for Mason County, State of Washington, Defendant: Michael K Dorcy, Timothy Whitehead, MASON COUNTY PROSECUTOR'S OFFICE, SHELTON, WA; Pamela Beth Loginsky, WASHINGTON ASSOCIATION OF PROSECUTING ATTORNEYS, OLYMPIA, WA.
For Russell D. Hauge, Prosecutor for Kitsap County, State of Washington, Defendant: Shelley E Kneip, KITSAP COUNTY PROSECUTOR'S OFFICE, PORT ORCHARD, WA.
For Scott W. Rosekrans, Prosecutor for Jefferson County, State of Washington, Defendant: David W Alvarez, JEFFERSON COUNTY PROSECUTING ATTORNEY'S OFFICE, PORT TOWNSEND, WA.
For H. Steward Menefee, Prosecutor for Grays Harbor County, State of Washington, Defendant: James Garnet Baker, GRAYS HARBOR PROSECUTING ATTORNEY'S OFFICE, MONTESANO, WA.
For Deborah Kelly, Prosecutor for Clallam County, State of Washington, Defendant: Brian Patrick Wendt, Mark Burns Nichols, CLALLAM COUNTY PROSECUTING OFFICE, PORT ANGELES, WA.
For Jon Tunheim, Prosecutor for Thurston County, State of Washington, Defendant: Scott C. Cushing, THURSTON COUNTY PROSECUTING ATTORNEY'S OFFICE (CIVIL), CIVIL DIVISION - BLDG NO. 5, OLYMPIA, WA.
For Quileute Tribe, Amicus: Katherine K Krueger, LEAD ATTORNEY, QUILEUTE NATURAL RESOURCES, LAPUSH, WA; Lauren King, FOSTER PEPPER PLLC, SEATTLE, WA.
For Hoh Tribe, Amicus: Craig J Dorsay, LEAD ATTORNEY, PORTLAND, OR; Lea Ann Easton, LEAD ATTORNEY, LAW OFFICE OF CRAIG J. DORSAY, PORTLAND, OR.
JAMES L. ROBART, United States District Judge.
ORDER GRANTING MOTIONS TO DISMISS
Before the court are (1) Defendants Peter Goldmark, Washington State Commissioner of Public Lands and Administrator for the Department of Natural Resources (" DNR" ); Lenny Young, Supervisor for DNR; Bob Ferguson, Attorney General for the State of Washington; Phil Anderson, Director of the Washington Department of Fish and Wildlife (" WDFW" ); and Bruce Bjork, Assistant Director of WDFW and Chief of WDFW Enforcement's (collectively " State Defendants" ) motion for dismissal of Plaintiff Skokomish Indian Tribe's (" the Tribe" ) action (State Mot. (Dkt. # 59)); and (2) Defendants Prosecuting Attorneys Michael Dorcy of Mason County, Russell Hauge of Kitsap County, Scott Rosekrans of Jefferson County, H. Steward Menefee of Gray's Harbor County, Deborah Kelly of Clallam County, and Jon Tunheim of Thurston County's (collectively " Defendant County Prosecutors" ) motion for dismissal (Pros. Mot. (Dkt. # 60)). The court has considered the motions, all submissions filed in support of or opposition thereto including the memorandum of the amici curiae Hoh Tribe and Quileute Tribe (A.C. Mem. (Dkt. # 67), the balance of the record, and the applicable law. In addition, the court heard oral argument from counsel on January 2, 2014. Being fully advised, the court GRANTS both motions on grounds that Skokomish Indian Tribe failed to join certain other Indian tribes in this action. These other tribes are required parties under Federal Rule of Civil Procedure 19, but cannot be joined due to their sovereign immunity. Because the court concludes that the action cannot proceed " in equity and good conscience" without these other tribes, see id., the court dismisses Skokomish Indian Tribe's action without prejudice. With respect to Defendants Goldmark and Young only, the court also grants Defendants' motions to dismiss on grounds of Eleventh Amendment sovereign immunity and because Skokomish Indian Tribe has failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). Nevertheless, despite granting Defendants' motions, the court also grants Skokomish Indian Tribe leave to amend its Amended Complaint.
In this action, Skokomish Indian Tribe seeks " to protect the privilege of hunting and gathering roots and berries on open and unclaimed lands, guaranteed by Article 4 of the Treaty of Point No Point of January 26, 1855." (Am. Compl. ¶ 2 (citing 12 Stat. 933).) The Tribe's Amended Complaint, including 13 exhibits, is more than two hundred pages long. ( See generally id. ) The court, however, will endeavor to summarize the salient allegations and
background that are pertinent to Defendants' motions.
From 1854-1856, Issac I. Stevens, Governor of Washington Territory, and his agents, executed several treaties with Native American tribes in areas that would eventually become part of the State of Washington. See Washington v. Washington State Comm. Passenger Fishing Vessel Ass'n, 443 U.S. 658, 661-62, 666 n.2, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); United States v. Washington, 384 F.Supp. 312, 330 (W.D. Wash. 1974). These treaties are commonly referred to as the " Stevens Treaties." Skokomish Indian Tribe v. United States, 410 F.3d 506, 523 n.3 (9th Cir. 2005) (Berzon, J., dissenting). By signing the " Stevens Treaties," the tribes reserved the right to continue their traditional activities, such as hunting and fishing. United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 49 L.Ed. 1089 (1905); see also Washington, 443 U.S. at 667-68.
One of the Stevens Treaties is the Treaty of Point No Point (" the Treaty" ), which is at issue in this lawsuit. Skokomish Indian Tribe, 410 F.3d at 523 n.3 (Berzon, J., dissenting). In addition to Skokomish Indian Tribe, three other Native American tribes have established that they signed or are successors to signatories of the Treaty of Point No Point: Jamestown S'Klallam, Lower Elwha Tribal Community, and Port Gamble S'Klallam. In Article 1 of the Treaty, the signatory tribes ceded to the United States certain lands which they had traditionally used. See 12 Stat. 933, Art. 1. The tribes, however, reserved the right to continue their traditional hunting, gathering, and fishing practices on ceded and certain other lands. Specifically, Article 4 of the treaty states in pertinent part that " [t]he right of taking fish at usual and accustomed grounds and stations is further secured to said Indians, in common with all citizens of the United States . . . together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. . . ." 12 Stat. 933, Art. 4.
Skokomish Indian Tribe alleges that the Tribe's territory as it relates to the privilege of hunting and gathering in Article 4 of the Treaty includes: (1) all lands ceded within the boundaries established in Article 1 of the Treaty, (2) all lands within the Tribe's territories, and (3) all lands within the Tribe's traditional use areas. (Am. Compl. ¶ 103.) In addition, the Tribe asserts that the hunting and gathering privilege of Article 4 extends to " [a]ll other lands not within the ceded area boundaries established in Article 1 . . . upon which the Privilege of hunting and gathering roots and berries is guaranteed by the Article 4 . . . ." ( Id. ) It is unclear what land this last allegation encompasses specifically, but it appears that it may encompass something more than ceded areas, tribal territories, and traditional use areas.
Skokomish Indian Tribe further alleges that it has the " exclusive authority to determine the time, place and manner" of hunting and gathering as guaranteed by Article 4 of the Treaty. (Am. Compl. ¶ ¶ 94, 96.) The Tribe also alleges that it " may hunt and gather up to and including
one hundred percent (100 %) of any game, roots and berries." ( Id. ¶ 100.) The Tribe alleges that " no other Indian tribe nor the Defendants have standing to challenge . . . Skokomish Indian Tribe's interpretation [of the Treaty]." ( Id. ¶ 88.)
Although the fishing provisions of the Stevens Treaties have been determined to reserve to " treaty right fishermen" the right to harvest up to fifty percent (50 %) of the harvestable fish that pass through its traditional fishing grounds, see Washington, 384 F.Supp. at 343, with limited exceptions, the scope of the hunting and gathering provision has not been previously litigated in federal court. The Washington Supreme Court, however, has held that the Treaty of Point Elliot, one of the Stevens Treaties, reserved to the Nooksack Tribe the right to hunt within the lands ceded to the United States, as well as on any other lands that the Tribe could prove were " actually used for hunting and occupied by the Nooksack Tribe over an extended period of time." State v. Buchanan, 138 Wn.2d 186, 978 P.2d 1070, 1080-81 (Wash. 1999). Skokomish Indian Tribe alleges that " [t]his ruling is inaccurate, incomplete and in direct conflict with . . . Skokomish Indian Tribe's interpretation of [the] Privilege guaranteed by Article 4 of the Treaty of Point No Point . . . ." (Am. Compl. ¶ 105; see ...