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United States v. State

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

November 13, 2019

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




         The Swinomish Indian Tribal Community (“Swinomish”), the Tulalip Tribes (“Tulalip”), and the Upper Skagit Indian Tribe (“Upper Skagit”) initiated this subproceeding against the Lummi Nation (“Lummi”). Dkt. #3.[1] Swinomish, Tulalip, and Upper Skagit (collectively, the “Region 2 East Tribes”), seek to establish that “[t]he adjudicated usual and accustomed fishing places of the Lummi Nation do not include Region 2 East.” Id. On November 4, 2019, the Lummi Indian Business Council filed a regulation purporting to open portions of Region 2 East to crab fishing on November 6, 2019. Dkt. #10-1[2] at 4. That same day, Swinomish filed its motion for a temporary restraining order. Dkt. #8.[3] Upper Skagit and Tulalip filed similar motions for temporary restraining orders on November 5, 2019. Dkts. #13[4] and #16.[5] The motions all seek an order enjoining Lummi from opening the Shellfish Region 2 East (generally, the waters east of Whidbey Island) winter crab fishery.

         After the motions were filed, Swinomish informed the Court of the unfortunate passing of a Tulalip tribal leader and elder. Dkt. #19.[6] Swinomish informed the Court that all involved had agreed to delay the opening of the Region 2 East winter crab fishery. Id. The Court struck the noting dates, set a time specific for responses, and directed the parties to renote their motions for consideration at the appropriate time. Dkt. #22.[7] Lummi subsequently responded. Dkt. #29.[8]As an interested party, the Jamestown S'Klallam Tribe and Port Gamble S'Klallam Tribe (collectively, “S'Klallam”), also responded.[9] Dkt. #26.[10]

         On November 7, 2019, Swinomish filed notice renoting the motions for the Court's consideration on that date. Dkt. #35.[11] Swinomish further indicated that the Region 2 East winter crab fishery is now “scheduled to resume on Thursday, November 14, 2019, at 9:00 a.m.” Id. at 2. Having reviewed the motions and the record herein, the Court enters this temporary restraining order.


         Judge Boldt determined the Lummi usual and accustomed fishing places (“U&A”) in 1974. United States v. Washington, 384 F.Supp. 312, 360 (W.D. Wash. 1974). Judge Boldt determined that “the 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.” Id. Since that time, Lummi has not opened any portion of Region 2 East to crab fishing. Dkt. #10[12] at ¶ 30; Dkt. #14[13] at ¶ 13; Dkt. #17[14] at ¶ 7. Nevertheless, on November 4, 2019, Lummi “issued a regulation opening a portion of Region 2 East in the winter crab fishery.” Dkt. #11[15] at ¶ 21; Dkt. #11-1 at 50.

         The State of Washington and the treaty tribes share management responsibility and, as relevant here, “enter into shellfish management agreements for each shellfish management area in order to regulate treaty and non-treaty harvest in accordance with the principles of fairness, conservation, and sharing.” Dkt. #11 at ¶ 4. Overall harvest quota is allocated 50% to the State and 50% to the tribes. Id. The tribal harvest quota within Region 2 East has historically been managed by the Region 2 East Tribes and the Suquamish Indian Tribe (“Suquamish”), which has a limited U&A in the southern tip of Region 2 East. Id. at ¶ 7. The tribes collaborate to a considerable degree to assure that the harvest is appropriate in scope, that the timing of the opening provides advantageous conditions, and that the overall harvest stays within the tribal quota. Id. at ¶¶ 6-7. In the past, Lummi has participated in some of the collaborative planning but has not opened any portion of Region 2 East to Lummi crab fishing. Id. at ¶¶ 6-16.

         In 2018, Lummi communicated its intent to open Region 2 East to crab fishing. Swinomish and Upper Skagit immediately sought injunctive relief from this Court. United States v. Washington, Subproceeding 18-01RSM, Dkts. #3[16] and #7.[17] However, Lummi responded that it did not actually plan to fish in Region 2 East and the Court found injunctive relief unnecessary at that time. Subproceeding 18-01RSM, Dkt. #27.[18] Subsequently, that subproceeding was voluntarily dismissed so the tribes could satisfy prefiling requirements. Subproceeding 18-01RSM, Dkt. #38.[19]

         Since then, the tribes have continued to dispute whether Lummi may participate in the Region 2 East crab fishery. Lummi points out that it is a signatory to the tribes' management plan with the State, the “2019-202 Region 2 East Dungeness Crab Harvest Management Plan for Fisheries Conducted by U.S. v. Washington, Subproceeding 89-3 Treaty Tribes and the State of Washington” (the “Region 2 East 2019-2020 Plan”). Dkt. #30[20] at ¶ 5. Concerned over “a slowly declining catch rate over the past 4 years, ” the Region 2 East 2019-2020 Plan set an overall tribal harvest quota of 1, 000, 000 pounds, the lowest quota in the history of the Region 2 East crab fishery. Dkt. #11 at ¶ 17. During the summer openings, the Region 2 East Tribes and Suquamish harvested 688, 000 pounds of crab, leaving 312, 000 pounds for the winter crab fishery. Id. at ¶ 19.[21]

         The Region 2 East Tribes and Suquamish have generally carried on management of the tribal quota, as they have done in the past. The tribes use the harvest quota and anticipated fleet sizes of the Region 2 East Tribes and Suquamish to set regulations opening the fishery for a set number of hours and limiting the amount of fishing gear that can be used by each boat in an effort to stay within the tribal harvest quota. Id. at ¶ 28. Lummi asserts that it “regularly participates” in management discussions involving Region 2 East “when notified, ” but has been “regularly excluded.” Dkt. #30 at ¶¶ 7-8.[22] Specifically, Lummi indicates that it was asked to leave a September 27, 2019 meeting after confirming its “intent to participate in the next Region 2 East crab fishery.” Id. at ¶ 13. Thereafter, the other tribes set regulations with the expectation that Lummi would not be participating in the Region 2 East winter crab fishery. Dkt. #11 at ¶ 17.

         On November 4, 2019, the Region 2 East Tribes and the Suquamish shared their regulations with the Lummi, giving notice of their intent to open the Region 2 East crab fishery on November 6, 2019. Dkt. #30 at ¶¶ 14-17. Those regulations anticipated an opening of 248 hours-or, most likely, until the remaining tribal harvest quota was caught-and anticipated a fleet of approximately 170 boats using up to 50 pots per boat. Id. Upon receiving notice of the opening, Lummi issued regulations opening fishing in a portion of Region 2 East for the same time and for an “expected effort” of 10 boats. Dkt. #11-1 at 50; Dkt. #30 at ¶ 18. Shortly thereafter the Region 2 East Tribes filed their motions seeking temporary restraining orders preventing Lummi from participating in the Region 2 East winter crab fishery.


         The standards for issuing a TRO are similar to those required for a preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D. Ca. 1995). The Ninth Circuit has described the standards for deciding whether to grant a motion for a preliminary injunction as follows:

To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases. Under either formulation, the moving party must demonstrate a significant threat of irreparable injury, irrespective of the magnitude of the injury.

Big Country Foods, Inc. v. Bd. of Educ. of Anchorage Sch. Dist., 868 F.2d 1085, 1088 (9th Cir. 1989) (citations omitted). The speculative risk of a possible injury is not enough; the threatened harm must be imminent. Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988); Fed. R. Civ. Proc. 65(b)(1)(A).

         A. Likelihood of Success on the Merits

         The underlying question in this action is whether Lummi U&A extends into or through Region 2 East. While not determinative, perhaps the most obvious starting point is that Lummi has largely not pursued any such rights for 45 years. Additionally, Upper Skagit notes that this Court, and the Ninth Circuit, have previously determined that Lummi's U&A is ambiguous. Dkt. #13 at 6. In determining whether Lummi U&A encompasses waters east of Whidbey Island, the Region 2 East Tribes point out that Lummi's U&A does not include any “geographic anchors or features listed” within those waters. Id. at 12;[23] see also Dkt. #8 at 11-12. Conversely, the Region 2 East Tribes focus on the fact that geographic anchors or features are listed for Lummi U&A to the north and west of Whidbey. Dkt. #8 at 11-12. The Region 2 East Tribes further draw support from earlier decisions in this case and rely on inconsistent positions taken by Lummi as to whether they traveled south through the waters west of Whidbey or the waters east of Whidbey. Id. at 12-13; Dkt. #13 at 12-14.

         In opposition, Lummi primarily makes a procedural argument seeking to avoid the issue in full. Dkt. #29 at 9 (arguing that the request for determination sets forth a scope broader than the scope of the issues discussed in the pre-filing meet and confer). The argument is not overly persuasive, and the Court does not find it appropriate to wade into the issue at this stage. Beyond that, Lummi relies on the burden of proof that the Region 2 East Tribes will be required to satisfy and argues that they will not satisfy their burden. Id. at 10-15 (arguing that the Region 2 East ...

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