United States District Court, W.D. Washington, Seattle
ORDER GRANTING TEMPORARY RESTRAINING ORDER
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.
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. 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 at 4. That same
day, Swinomish filed its motion for a temporary restraining
order. Dkt. #8. Upper Skagit and Tulalip filed similar
motions for temporary restraining orders on November 5, 2019.
Dkts. #13 and #16. The motions all seek an order
enjoining Lummi from opening the Shellfish Region 2 East
(generally, the waters east of Whidbey Island) winter crab
the motions were filed, Swinomish informed the Court of the
unfortunate passing of a Tulalip tribal leader and elder.
Dkt. #19. 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. Lummi subsequently responded.
Dkt. #29.As an interested party, the Jamestown
S'Klallam Tribe and Port Gamble S'Klallam Tribe
(collectively, “S'Klallam”), also
responded. Dkt. #26.
November 7, 2019, Swinomish filed notice renoting the motions
for the Court's consideration on that date. Dkt.
#35. 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.
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 at ¶ 30; Dkt. #14 at ¶ 13;
Dkt. #17 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 at ¶ 21; Dkt. #11-1 at 50.
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.
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 and #7. 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. Subsequently, that
subproceeding was voluntarily dismissed so the tribes could
satisfy prefiling requirements. Subproceeding 18-01RSM, Dkt.
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 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 ¶
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. 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.
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.
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).
Likelihood of Success on the Merits
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; 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.
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 ...