United States District Court, W.D. Washington, Seattle
ORDER ON PENDING MOTIONS
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on a Motion for Leave to Amend the
Request for Determination and Memorandum of Support (Dkt.
#238) 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) filed by the Lower Elwha Klallam Indian
Tribe (“Lower Elwha”).
subproceeding was initiated on November 4, 2011, as a joint
Request for Determination (“RFD”) by
S'Klallam and Lower Elwha. Dkt. #1-1. 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). 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
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)
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.
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.
This Court agreed, finding that the issue had already been
resolved by a prior judicial decision in Subproceeding 89-2.
Dkt. #59. 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) (“Lummi II”). The
matter was remanded to this Court for further proceedings.
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. Lummi again appealed, and the Ninth
Circuit again reversed.
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.”
Differing Interpretations of Lummi III
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
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. 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.
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
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 and
#254. 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.
S'Klallam's Motion for Leave to Amend
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).
S'Klallam's Arguments for Amendment Are Not
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.
S'Klallam's “New Facts” Argument Raises
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.
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 ...