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Statel v. State

United States District Court, W.D. Washington, Seattle

July 11, 2019

UNITED STATES OF AMERICA, et al., Plaintiffs,
v.
STATE OF WASHINGTON, et al., Defendants.

          ORDER ON PENDING MOTIONS

          RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the Court on a Motion for Leave to Amend the Request for Determination and Memorandum of Support (Dkt. #238[1]) filed by the Jamestown S'Klallam Tribe and the Port Gamble S'Klallam Tribe (collectively, “S'Klallam”) and a Motion for Entry of Judgment (Dkt. #252[2]) filed by the Lower Elwha Klallam Indian Tribe (“Lower Elwha”).[3]

         This subproceeding was initiated on November 4, 2011, as a joint Request for Determination (“RFD”) by S'Klallam and Lower Elwha. Dkt. #1-1.[4] The tribes sought confirmation that Lummi Nation's (“Lummi”) usual and accustomed fishing places (“U&A”) did “not include the eastern portion of the Strait of Juan de Fuca or the waters west of Whidbey Island (excepting Admiralty Inlet).” Id. at ¶ 2. On this subproceeding's second trip to the Ninth Circuit, the Ninth Circuit concluded “that the waters west of Whidbey Island, which lie between the southern portion of the San Juan Islands and Admiralty Inlet, are encompassed in the Lummi's U&A.” United States v. Lummi Nation, 876 F.3d 1004, 1011 (9th Cir. 2017) (“Lummi III”) (Dkt. #224[5]). The Ninth Circuit remanded the matter to this Court and the parties pursued settlement. The parties were unable to agree on an appropriate path forward or on a satisfactory resolution and now present the three different interpretations of Lummi III and three different views for the future of this dispute. Believing that litigation should continue, S'Klallam seeks leave to amend the RFD. Lower Elwha believes that the Ninth Circuit's decision resolved this case and seeks for the Court to enter judgment. Lummi, also believing that the dispute has been resolved, does not support amendment of the RFD but does not agree with the judgment that Lower Elwha seeks. Finding that this subproceeding has run its course, the Court resolves the pending motions as follows and dismisses the action.[6]

         II. BACKGROUND

         At issue in this subproceeding is the scope of the Lummi U&A, an issue that has been before this Court several times. Judge Boldt provided the first determination:

[T]he usual and accustomed fishing places of the Lummi Indians at treaty times included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay.

United States v. Washington, 384 F.Supp. 312, 360 (W.D. Wash. 1974) (“Final Decision I”). In Subproceeding 89-2, this Court determined that the Lummi U&A did not include the Strait of Juan de Fuca, Admiralty Inlet, or the mouth of Hood Canal. The Ninth Circuit reversed as to Admiralty Inlet because it “would likely be a passage through which the Lummi would have traveled from the San Juan Islands in the north to the ‘present environs of Seattle.'” United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000) (“Lummi I”).

         Years later, Lower Elwha and S'Klallam initiated this subproceeding, asserting “that Lummi's U&A does not include the eastern portion of the Strait of Juan de Fuca or the waters west of Whidbey Island (excepting Admiralty Inlet).” Dkt. #1-1 at ¶ 2 (citing Lummi I). The waters at issue in the dispute (the “disputed waters”) were further defined:

[T]he marine waters northeasterly of a line running from Trial Island near Victoria, British Columbia, to Point Wilson on the westerly opening of Admiralty Inlet [(the “Trial Island Line”)], bounded on the east by Admiralty Inlet and Whidbey Island, and bounded on the north by Rosario Strait, the San Juan Islands, and Haro Strait.

Id.

         Lower Elwha and S'Klallam sought summary judgment on the basis that prior decisions had already determined that no Lummi U&A was within the disputed waters. Dkt. #40.[7] This Court agreed, finding that the issue had already been resolved by a prior judicial decision in Subproceeding 89-2. Dkt. #59.[8] Lummi appealed to the Ninth Circuit. On review, the Ninth Circuit reversed, finding that its reasoning in Lummi I applied equally in this case and that “no prior decision in this case has yet explicitly or by necessary implication determined whether the waters immediately west of northern Whidbey Island are a part of the Lummi's U&A.” United States v. Lummi Nation, 763 F.3d 1180, 1187-88 (9th Cir. 2014)[9] (“Lummi II”). The matter was remanded to this Court for further proceedings.

         On a second motion for summary judgment, this Court found that the evidence before Judge Boldt did not support the conclusion that he intended to include any of the disputed waters in Lummi's U&A and the Court resolved the matter in favor of Lower Elwha and S'Klallam. Dkt. #210.[10] Lummi again appealed, and the Ninth Circuit again reversed.

         The Ninth Circuit concluded “that the district court erred in excluding the waters west of Whidbey Island from the Lummi's U&A.” Lummi III, 876 F.3d at 1009. In doing so, the Ninth Circuit relied on its prior reasoning that “[i]f to ‘proceed through Admiralty Inlet' rendered Admiralty Inlet a part of the Lummi U&A, then to proceed from the southern portions of the San Juan Islands to Admiralty Inlet would have the same effect: to render the path a part of the Lummi U&A, just like Admiralty Inlet.” Id. at 1010 (quoting Lummi II, 763 F.3d at 1187) (quotation marks omitted). On this basis, the Ninth Circuit held “that the waters west of Whidbey Island, which lie between the southern portion of the San Juan Islands and Admiralty Inlet, are encompassed in the Lummi's U&A.” Id. at 1011. The Ninth Circuit did not define “the waters west of Whidbey.”

         III. DISCUSSION

         A. Differing Interpretations of Lummi III

         The Ninth Circuit's latest ruling has done little to resolve the underlying conflict and the tribes have adopted three differing interpretations of Lummi III and how to proceed.

         S'Klallam takes the position that the Ninth Circuit determined only that there must be some Lummi U&A within the disputed waters, but that the Ninth Circuit left it for this Court to determine where that U&A lies. As such, S'Klallam believes that an amended RFD is necessary, removing assertions that Lummi is prevented from fishing in “waters west of Whidbey Island” and instead requesting that the Court determine Lummi's “transit path, ” define the “waters west of Whidbey Island, ” and define the eastern boundary of the Strait of Juan de Fuca.[11] Dkt. #238 at 6-9. S'Klallam believes that these amendments will allow the Court to make factual determinations to fully resolve the dispute. Because S'Klallam believes that further proceedings are necessary and Lower Elwha believes that judgment should be entered, S'Klallam believes that Lower Elwha should be stricken as a co-requestor and also opposes Lower Elwha's Motion for Entry of Judgment.

         Lower Elwha maintains that the Ninth Circuit has resolved the matter, such that judgment should be entered. Dkt. #252. Specifically, Lower Elwha argues that the Ninth Circuit (1) determined that the disputed waters are Lummi U&A, (2) thereby determined the full extent of Lummi U&A, and (3) determined that Lummi U&A cannot include any waters further west of the disputed waters-west of the Trial Island Line. Id. at 1-2. Lower Elwha therefore opposes S'Klallam's Motion and requests, in its own Motion, that the Court enter judgment consistent with its interpretation.

         Lummi agrees with Lower Elwha that the Ninth Circuit resolved this matter but disagrees as to whether the western boundary of its U&A was fully determined. Dkts. #240[12] and #254.[13] Lummi maintains that the Ninth Circuit determined that all of the disputed waters are “waters west of Whidbey Island” and constitute Lummi U&A. Dkt. #240 at 2. But Lummi further maintains that the western boundary of its U&A has not been determined and may lie further west than the Trial Island Line. Dkt. #254 at 2. Lummi accordingly opposes both motions and believes that no further proceedings should occur in this matter.

         B. S'Klallam's Motion for Leave to Amend

         1. Legal Standard

         Federal Rule of Civil Procedure 15 mandates that leave to amend “be freely given when justice so requires.” Fed.R.Civ.P. 15(a). “This policy is to be applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). The party opposing amendment has the burden of showing that amendment is not warranted. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987); see also Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988). Amendment may be unwarranted “due to ‘undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . ., [and] futility of amendment.'” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). “Not all of the factors merit equal weight. . . . [I]t is the consideration of prejudice to the opposing party that carries the greatest weight.” Eminence Capital, 316 F.3d at 1052 (citation omitted). “Absent prejudice, or a strong showing of any of the remaining [] factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id. (emphasis in original).

         2. S'Klallam's Arguments for Amendment Are Not Persuasive

         S'Klallam raises two primary arguments in favor of amendment: that new facts call into question the Ninth Circuit's conclusions in Lummi I and Lummi III and that the Ninth Circuit remanded this case for the Court to make factual findings. But these arguments are not persuasive as they appear futile and raise jurisdictional concerns. Not only that, the amended RFD does not appear to appropriately state a claim. For these reasons, leave to amend is not proper.

         a. S'Klallam's “New Facts” Argument Raises Futility Concerns

         S'Klallam first argues that in this and other subproceedings Lummi has inconsistently and deceptively asserted that its U&A includes waters both to the west and to the east of Whidbey Island. Dkt. #238 at 3-4. Specifically, S'Klallam argues that it has recently learned of a 2008 Lummi agreement with the Swinomish Indian Tribal Community to “stand-down” in asserting U&A on the east side of Whidbey Island and that thereafter Lummi represented to this Court and the Ninth Circuit that the waters west of Whidbey Island “are the sole direct connection” between the San Juan Islands and Admiralty Inlet. Id. at 3. This undisclosed agreement is important information, S'Klallam argues, as it “would have refuted the argument that [] ‘it was just as likely' that the Lummi travelled west of Whidbey, ” thereby undermining the Ninth Circuit's reasoning in both Lummi I and Lummi III. Id. at 4.

         But there are several problems with S'Klallam's argument. Even if Lummi has taken inconsistent positions, S'Klallam provides no basis for this Court to revisit prior Ninth Circuit precedent. S'Klallam does not adequately demonstrate that the Ninth Circuit's decisions in Lummi I and Lummi III would have been different with knowledge of this “stand-down” agreement. And, as discussed below, this Court is unable to consider new evidence in this Paragraph 25(a)(1) proceeding. Lummi I, 235 F.3 at 450 (“the only matter at issue is the meaning of Judge Boldt's Finding [of Fact] 46 and the only relevant evidence is that which was considered by Judge Boldt when he made his finding”) (quoting Muckles ...


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