Plaintiffs Gros Ventre Tribe, the Fort Belknap Indian Community Council, and the Assiniboine Tribe (the Tribes) appealed the District Court of Montana’s grant of summary judgment for lack of jurisdiction[1] to defendants the Bureau of Land Management (BLM), the Indian Health Service, the Bureau of Indian Affairs and the United States (the Government) on claims that by approving and planning expansion of two cyanide heap-leach gold mines upriver from the Tribes’ reservation the Government breached general and specific trust obligations to safeguard tribal trust resources, mainly water rights. Rejecting the Tribes’ liability theory combining principles of general trust law with a challenge to agency inaction under the Administrative Procedure Act[2] (APA), the Ninth Circuit affirmed. The Ninth Circuit held that the government had no trust duty to regulate non-tribal resources for the Tribes’ benefit, and that after dividing the trial into a remedy and a liability phase the district court did not abuse its discretion by granting summary judgment to the government at the finish of the liability phase.

Residing on the Fort Belknap Indian Reservation (the Reservation), the Assiniboine and Gros Ventre Tribes are both signatories to the Treaty of Fort Laramie[3] and the 1855 Treaty with the Blackfeet.[4] In 1888, Congress reduced the territory of the Gros Ventre and set aside for the Tribes’ use the Fort Belknap Indian Reservation,[5] which included the Little Rocky Mountains, an area historically important to the Tribes and harboring gold deposits to which the Tribes relinquished their rights in the “Grinnell Agreement.”[6] Between 1979 and 1991, the Montana Department of State Lands authorized open pit mining using cyanide heap-leach technology near the Reservation’s southern boundary. In 1981, BLM joined in this authorization. These agencies approved the expansion of mining in a 1996 Environmental Impact Statement (EIS) and Record of Decision (ROD), despite discovering a widespread acid rock drainage problem. The Tribes successfully appealed the 1996 EIS and ROD to the Interior Board of Land Appeals[7] (IBLA), but while the appeal was pending in 1998, the mining companies declared bankruptcy and abandoned the expansion plans. BLM issued another ROD in 1998, rescinding the 1996 ROD and requiring reclamation of mining disturbances. Because the new ROD depended on the 1996 EIS, IBLA vacated it on the same grounds that it cited to revoke the 1996 ROD. In response, the State of Montana and BLM consulted with the Tribes, issuing a Final Supplemental Environmental Impact Statement (SEIS) in 2001 and a new ROD in 2002.

In 2000, the Tribes sued in equity, alleging that by permitting, approving, and failing to reclaim the mines the government breached its common law tribal trust obligations, because operation of the mines was still degrading tribal water resources. The Tribes asked the district court to: 1) declare that the government breached its fiduciary duty to safeguard tribal trust resources, 2) find that the government’s failure to obey statutory mandates including the National Environmental Policy Act[8] (NEPA) violated the Federal Land Policy and Management Act[9] (FLPMA) by allowing an undue and unnecessary degradation, 3) compel the government to satisfy its trust obligations by issuing a writ of mandamus, and 4) enjoin the government from continued destruction of tribal trust resources. In 2004, the district court awarded summary judgment to the government and subsequently denied the Tribes’ motion to amend judgment. The district court had concluded that the Tribes had no common law trust rights enforceable under the APA, that the Tribes did not have standing to challenge the 1996 ROD even though it was a final agency action because it had been superseded, and that because the mines had closed, challenges to BLM’s approval of the mines’ operation were moot.

The Ninth Circuit reviews a district court’s grant of summary judgment de novo[10] and reviews its litigation management decisions for an abuse of discretion.[11] The Ninth Circuit first addressed the parties’ argument involving whether a “final agency action”[12] is required to trigger the waiver of sovereign immunity under the APA[13] for actions in equity against the government. While recognizing a conflict in Ninth Circuit case law concerning this point,[14] the court declined to address that issue and instead affirmed the district court on its alternative holding that the Tribes had no substantive right to enforce the trust obligation independently of some other source of law.

Next, the Ninth Circuit addressed the Tribes’ argument that “simple common law trust claims based on clearly identified and ongoing injuries” renders the APA’s “final agency action” requirement inapplicable.[15] The court held that the Tribes could not bring a claim for breach of trust under common law that is completely distinct from any right provided in a statute. Further, while “there is a ‘distinctive obligation of trust incumbent upon the Government in its dealings with [Indian tribes],’”[16] that by itself does not require the government to do more than obey generally applicable regulations and statutes.[17] The court noted that in Vigil v. Andrus,[18] the Tenth Circuit held that the government’s tribal fiduciary duties did not extend to providing free lunches to all Indian schoolchildren.[19] Also, in Shoshone-Bannock Tribes v. Reno,[20] the D.C. Circuit held that a treaty provision that entitled tribes to hunt on unoccupied federal land as long as game remained [21] did not require the government to litigate claims to water rights on behalf of the tribes.[22]

The Ninth Circuit distinguished cases holding that the government had to obey a particular fiduciary obligation on the ground that in this case the Tribes sought to enforce a duty not specified in any statute or treaty to regulate non-tribal lands for the good of the Tribes.[23] The court discussed United States v. Mitchell,[24] in which the Supreme Court held that the United States did not have a fiduciary duty to manage timber on allotted lands for the good of the Indian-allottees. Although there was statutory language providing that the United States held the land in trust, that language was ambiguous, and the legislative history did not suggest that Congress intended the government to have a fiduciary duty.[25] Citing precedent as mandatory authority, the Ninth Circuit rebutted the Tribes’ assertion that Mitchell only applies to suits seeking money damages and that the government still has a general fiduciary duty to them in actions relating to Indian tribes that cannot be met through facial compliance with regulatory and statutory mandates.[26]

Next, the Ninth Circuit addressed the Tribes’ argument that Treaty with the Blackfeet, the Treaty of Fort Laramie, and the Grinnell Agreement impose a fiduciary duty on the government to manage water resources not located on the Reservation. The court noted that none of these agreements indicated that the government agreed unambiguously to manage water resources off the Reservation for the Tribes’ benefit. [27] Instead, the agreements only required the government to protect the Tribes from depredation on the Reservation, a duty only measurable in reference to universally applicable regulations and statutes. The court distinguished Mitchell on the grounds that in that case the tribes sought to enforce the United States’ fiduciary duty to manage resources on tribal land, whereas here the Tribes sought to impose a duty on the government “to regulate third-party use of non-Indian resources for the benefit of the Tribes.”[28] Providing that it knew of no authority that imposed a fiduciary duty in management of non-tribal resources, the court cited Marceau v. Blackfeet Housing Authority[29] as indicating that the government has a comprehensive fiduciary responsibility only when it has “‘take[n] full control of a tribally-owned resource and manage[d] it to the exclusion of the tribe.’”[30] The court indicated that when it read the Grinnell Agreement, the Treaty of Fort Laramie, and the Treaty with the Blackfeet it discerned a fiduciary duty on the government to protect the Tribes only from depredations on tribal land, which did not extend to the management of non-tribal resources for tribal benefit, including the mitigation of the nearby mine tailings.

The Ninth Circuit next addressed the Tribes’ claim under § 706(1) of the APA[31] that the government violated FLPMA by failing to stop the undue and unnecessary degradation of public lands.[32] The court noted that in Norton v. Southern Utah Wilderness Alliance[33] the Supreme Court provided that “[a failure to act claim] under [5 U.S.C.] § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take,”[34] therefore courts lack the power to “enter general orders compelling compliance with broad statutory mandates.”[35] The Ninth Circuit affirmed the district court’s decision to dismiss the Tribes’ FLPMA claim for lack of jurisdiction, providing that even if the government had a common law fiduciary duty springing from its obligations under FLPMA, there was no basis on which to assert that these obligations mandate the government to perform certain nondiscretionary acts.

Next, the Ninth Circuit addressed the district court’s finding that it lacked jurisdiction to hear the Tribes’ claims relying on the APA to allege violations of NEPA and the NHPA. The court provided that there is no private right of action under either NEPA or NHPA, so the Tribes had to assert claims under the APA.[36] The court noted that within the six-year statute of limitations,[37] the only “final agency action” that the Tribe challenged was the vacated 1996 ROD. The Ninth Circuit upheld the district court’s determination that it did not have jurisdiction over the Tribes’ claims under the APA because the Tribes could not allege injury arising from the 1996 ROD because it had since been vacated.[38]

Finally, the Ninth Circuit addressed the Tribes’ claim that the district court abused its discretion by granting summary judgment to the government at the close of the liability phase of the trial, before the Tribes could present evidence regarding feasible remedies. The court noted that while the district court’s original order provided “although damages have been bifurcated from liability, the lack of an effective remedy for any wrongs committed on the Tribes renders the exercise of judicial power superfluous, and the case moot,”[39] it explained its reasoning in a subsequent order. The district court’s subsequent order provided that it reconsidered its prior ruling on jurisdiction sua sponte and that it lacked jurisdiction to hear the Tribes’ claims because the Tribes could not challenge any actions outside the six year statute of limitations, and could not challenge the 1996 EIS and ROD, which had been vacated. The Ninth Circuit provided that because a district court is obligated at every stage of a trial to examine its jurisdiction,[40] and because the parties had briefed the issues thoroughly when the district court first considered the government’s motion to dismiss,[41] by reconsidering its jurisdiction at the close of the trial’s liability phase the Montana District Court did not abuse its discretion.

In conclusion, the Ninth Circuit affirmed the district court’s grant of summary judgment to the government, rejecting the Tribes’ argument that the government had a fiduciary duty to regulate off-reservation mining sites on behalf of the Tribes.

[1] Gros Ventre Tribe v. United States, 344 F. Supp. 2d 1221 (D. Mont. 2004).

[2] Administrative Procedure Act, 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2000).

[3] Treaty of Fort Laramie, Sept. 17, 1851, 11 Stat. 749 (providing that seven Indian nations, including the Gros Ventre and Assiniboine had “assembled for the purpose of establishing and confirming peaceful relations amongst themselves” and “agree[d] to abstain in future from all hostilities whatever against each other, to maintain good faith and friendship in all their mutual intercourse, and to make an effective and lasting peace,” while recognizing “the right of the United States Government to establish roads, military and other posts, within their respective territories.” The United States agreed in return to “protect the . . . Indian nations against the commission of all depredations by the people of the said United States.”); see also Montana v. United States, 450 U.S. 544, 553 (1981) (providing that instead of conveying land to the Indians, the Treaty of Fort Laramie “chiefly represented a covenant among several tribes which recognized specific boundaries for their respective territories”).

[4] Treaty with the Blackfeet, Oct. 17, 1855, 11 Stat. 657 (providing that the Tribes “agree[d] that citizens of the United States may live in and pass unmolested through the countries respectively occupied and claimed by them,” while the United States consented to be “bound to protect said Indians against depredations and other unlawful acts which white men residing in or passing through their country may commit”).

[5] See An Act to Ratify and Confirm an Agreement with the Gros Ventre, May 1, 1888, ch. 213, 25 Stat. 113.

[6] Agreement with the Indians of the Fort Belknap Indian Reservation in Montana, 1895, 29 Stat. 350; see also S. Doc. No. 54-117, at 3-4 (1896) (providing that the government negotiators had told the Tribes that they “would not be giving up any of their timber or grasslands . . . and that they would have ample water for all their needs”).

[7] See Island Mountain Protectors, 144 I.B.L.A. 168 (1998) (holding that the 1996 ROD violated the government’s tribal trust obligations, NEPA, and FLPMA).

[8] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-70e (2000).

[9] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-85 (2000).

[10] Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004).

[11] Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1358 (9th Cir. 1998).

[12] See 5 U.S.C. § 704 (2000).

[13] See id. § 702 (2000).

[14] Compare Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 1194 (9th Cir. 1998) (concluding that “the APA’s waiver of sovereign immunity contains several limitations” among them the final agency action requirement of § 704) with The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989) (concluding that “agency action” under the APA is not a condition to the sovereign immunity waiver under § 702, and therefore “final agency action” under the APA cannot be a requirement for the sovereign immunity waiver under § 702).

[15] Gros Ventre Tribe v. United States, 469 F.3d 801, 809 (9th Cir. 2006).

[16] Gros Ventre, 469 F.3d at 810 (quoting United States v. Mitchell (Mitchell II), 463 U.S. 206, 225 (1983) (quoting Seminole Nation v. United States, 316 U.S. 286, 296 (1942)).

[17] See, e.g., Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1482 (D.C. Cir. 1995) (providing “[A]n Indian tribe cannot force the government to take a specific action unless a treaty, statute or agreement imposes, expressly or by implication, that duty”).

[18] 667 F.2d 931 (10th Cir. 1982).

[19] Id. at 934.

[20] 56 F.3d 1476 (D.C. Cir. 1995).

[21] See Treaty of Fort Bridger, 1868, 15 Stat. 673.

[22] See Shoshone-Bannock Tribes v. Reno, 56 F.3d at 1478, 1482 (providing that the broad treaty provision protecting the tribes’ hunting rights “[d]id not suggest in the slightest that upon the Tribes’ request, the United States is bound to file and defend meritless claims to water rights,” and, “[w]ithout an unambiguous provision by Congress that clearly outlines a federal trust responsibility, courts must appreciate that whatever fiduciary obligation otherwise exists[ ] it is a limited one only”).

[23] Cf. United States v. Mason, 412 U.S. 391, 393, 398, 400 (1973) (indicating that the United States had not breached its fiduciary duty in managing an Osage Tribe member’s allotted land that it held in trust); Seminole Nation v. United States, 316 U.S. 296, 296-300 (1942) (indicating that in its stewardship of Indian annuities, the United States may have violated its fiduciary duty); Minnesota v. United States, 305 U.S. 382, 386 (1939) (providing that “the owner of the fee of the Indian allotted lands holds the same in trust for the allottees”).

[24] 445 U.S. 535 (1980).

[25] See id. ,at 542, 545 (providing that General Allotment Act did not “unambiguously provide that the United States has undertaken full fiduciary responsibilities as to the management of allotted lands,” and that the legislative history did not indicate that Congress meant for “the Government to manage timber resources for the benefit of Indian allottees”).

[26] See Morongo Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 574 (9th Cir. 1998) (providing that when the Morongo Band of Mission Indians sought equitable relief under the APA, the Ninth Circuit indicated that while “the United States does owe a general trust responsibility to Indian tribes, unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency’s compliance with general regulations and statutes not specifically aimed at protecting Indian tribes”); see also N. Slope Borough v. Andrus, 642 F.2d 589, 612 (D.C. Cir. 1980) (providing “[w]ithout an unambiguous provision by Congress that clearly outlines a federal trust responsibility, courts must appreciate that whatever fiduciary obligation otherwise exists, it is a limited one only”).

[27] See Mitchell, 445 U.S. at 542.

[28] Gros Ventre Tribe v. United States, 469 F.3d 801, 813 (9th Cir. 2006).

[29] 455 F.3d 974 (9th Cir. 2006).

[30] Gros Ventre Tribe, 469 F.3d at 813 (quoting Marceau v. Blackfeet Hous. Auth, 455 F.3d 974, 984 (9th Cir. 2006) (emphasis added)); see also Gros Ventre Tribe, 469 F.3d at 813 (providing “fiduciary duties arise under Mitchell only where the federal government pervasively regulates a tribally-owned resource”); Inter Tribal Council of Arizona, Inc. v. Babbitt, 51 F.3d 199, 203 (9th Cir. 1995) (finding no fiduciary duty like that in Mitchell because “[t]he off-reservation school was not part of Indian lands, but was merely allocated by the BIA for use by the Tribes”).

[31] 5 U.S.C. § 706(1) (2000).

[32] See Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108, 1111 (9th Cir. 2005) (providing that there is not a private cause of action under FLPMA, and that FLPMA is mainly a procedural statute).

[33] 542 U.S. 55 (2004).

[34] Id. at 64.

[35] Id. at 66.

[36] See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1098-99 (9th Cir. 2005) (providing that § 106 of the NHPA includes no implied right of action); Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 438 F.3d 937, 942 (9th Cir. 2006) (providing that there is no private right of action under NEPA).

[37] See Wind River Mining Corp. v. United States, 946 F.2d 710, 712-13 (9th Cir. 1991) (providing that the “general six-year statute of limitations for civil actions brought against the United States, see 28 U.S.C. § 2401(a), applies to actions for judicial review brought pursuant to the Administrative Procedure Act [APA].”).

[38] See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (providing that at a minimum standing requires 1) actual injury, 2) the challenged action caused the alleged injury, and 3) a possibility that a favorable decision will redress the injury).

[39]

[40] See Scholastic Entm’t, Inc. v. Fox Entm’t Group, Inc., 336 F.3d 982, 985 (9th Cir. 2003).

[41] Cf. id. (providing that because the parties had briefed the issues beforehand, the district court’s sua sponte dismissal for lack of jurisdiction did not violate appellant’s right to due process).

Alaskan native villages (Quinhagak plaintiffs) sued Alaska and the United States to enforce their fishing rights under the Alaska National Interest Lands Conservation Act (ANILCA).[1] Finding that the Quinhagak plaintiffs prevailed on the merits, the district court awarded attorney fees for the litigation stages but not the administrative stages of the suit. Alaska appealed the award, and the Quinhagak plaintiffs cross-appealed the denial of attorney fees for the administrative stages. The Ninth Circuit affirmed the district court’s award of litigation fees, but reversed and remanded for consideration of a fee award for the administrative stage.

Litigation over Alaskan native subsistence fishing rights had been ongoing for twelve years. Two key issues at stake were whether navigable and federally reserved waters in Alaska are managed under ANILCA (the “where” issue), and whether the state or federal government had jurisdiction over the waters (the “who” issue). The federal court combined two major cases involved in the controversy, Katie John v. United States[2] and Alaska v. Babbitt [3] (collectively Katie John/Babbitt), staying all other proceedings until the core issues were resolved in the combined case. The Quinhagak plaintiffs sued for declaratory judgment concerning their fishing rights, and their action was stayed along with the other cases awaiting the resolution of the core issues in Katie John/Babbitt. The Quinhagak plaintiffs also joined the other parties in filing amicus briefs in Katie John/Babbitt. After the district court in Katie John/Babbitt found that ANILCA applied to all navigable waters in Alaska and confirmed federal management authority, the district court in the instant case ruled in favor of the Quinhagak plaintiffs, who then filed for attorney fees under ANILCA.[4] The district court found that the Quinhagak plaintiffs were prevailing parties, and therefore could recover attorney fees for the litigation phase, but not for the administrative phases because ANILCA did not authorize fees for these phases.

The Ninth Circuit affirmed the district court’s finding that Quinhagak plaintiffs were eligible for attorney fees under ANILCA. On appeal, the state argued that the Quinhagak plaintiffs did not raise the “who” issue in their case and thus should not receive attorney fees for work on this issue in Katie John/Babbitt. The court disagreed, citing three reasons. First, during the preliminary injunction hearing the State recognized that the federal jurisdiction issue related to the Quinhagak case. Second, both courts found the issue central to the present case because it relied on Title VIII subsistence rights which would not apply if the State had jurisdiction. Finally, the Quinhagak plaintiffs were invited by the court to file, and did file, briefs in the Katie John/Babbitt case. Based on their participation in Katie John/Babbitt and the centrality of the “who” issue to determination of their case, the Quinhagak plaintiffs were prevailing parties entitled to attorney fees for their work in Katie John/Babbitt.

On cross-appeal, the Quinhagak plaintiffs challenged the denial of attorney fees for the administrative stages of the case. While the Ninth Circuit agreed with the district court that ANILCA does not expressly award attorney fees for required administrative proceedings, the court found that it also did not expressly deny fees. The language of ANILCA awards attorney fees to prevailing parties in an “action.”[5] Relying on the analogous issue decided by the U.S. Supreme Court in relation to the Clean Air Act[6] in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,[7] the court determined that the language of the act should be read broadly, so as to permit costs and fees for the administrative phases, regardless of the timing. Following the Supreme Court’s reasoning, if the administrative work was “ordinarily necessary” to the action, the court had discretion to award such costs.[8] In considering ANILCA, the Ninth Circuit determined that Congress clearly expressed its goal to protect native fishing rights and its intention that administrative proceedings assist natives in maintaining those rights.[9] Applying the rule in Pennsylvania, the Ninth Circuit concluded that administrative phases are ordinarily necessary to action under ANILCA and thus the district court had discretion to award fees for those phases of the action. The Ninth Circuit remanded the case to the district court to determine what attorney fees for administrative proceedings the Quinhagak plaintiffs were entitled to under this broad reading of ANILCA.

[1] Alaska National Interest Lands Conservation Act, 16 U.S.C. §§ 3101-3233 (2000).

[2] 247 F.3d 1032 (9th Cir. 2001) (en banc) (per curiam) (Alaskan natives challenged Secretary’s exclusion of navigable waters from ANILCA management and Alaska’s jurisdiction over those waters).

[3] 72 F.3d 698 (9th Cir. 1995) (Alaska sued the federal government, asserting its right to regulate navigable waters).

[4] 16 U.S.C. § 3117(a) (2000).

[5] Id.

[6] 42 U.S.C. §§ 7401-7671q (2000).

[7] 478 U.S. 546, 557 (1986).

[8] Id. at 561.

[9] See 16 U.S.C. § 3111(1), (5) (2000) (confirming the purpose of Title VIII to protect subsistence rights for Native Alaskans and establishing a procedure to give rural residents a “meaningful role” in the management of those rights).

The Muckleshoot Indian Tribe (Muckleshoot) and other south Puget Sound Indian Tribes disputed an interpretation of decrees adjudicating their treaty fishing rights with respect to the “usual and accustomed fishing places” of the Lummi and Swinomish tribes. Muckleshoot and other south Puget Sound Tribes filed a request for determination (RFD) seeking an injunction restraining the fisheries of north Puget Sound Tribes, including the Swinomish and Lummi Tribes (Swinomish and Lummi). The northern fisheries intercepted salmon on their return migration from the ocean, through the Strait of Juan de Fuca and Puget Sound. The north Puget Sound Tribes moved to dismiss, and Muckleshoot filed a motion for summary judgment against Swinomish and Lummi.

Muckleshoot sought rulings that each Tribe’s usual and accustomed fishing grounds and places, as defined by United States v. Washington (Phase I)[1] and United States v. Washington (Phase II),[2] did not include the Puget Sound Commercial Salmon Management and Catch Reporting Area 10, an area including the waters of Puget Sound bordering the City of Seattle. The district court granted Muckleshoot’s motion against Swinomish and continued the motion against Lummi to allow that Tribe to depose anthropologist Dr. Barbara Lane, an expert witness whose report on historical tribal fishing grounds was the principal evidence relied upon in Phase I. The district court later granted Muckleshoot’s motion for partial summary judgment against Lummi and dismissed the RFD without prejudice but subject to limitations on refiling.

On appeal, Swinomish claimed that the district court had erred in hearing Muckleshoot’s partial summary judgment motion. Swinomish claimed that Muckleshoot had violated the decree by making Area 10 fishing ground claims in the RFD rather than initiating a separate subproceeding. Phase I provides that “a party seeking relief shall file . . . a ‘request for determination,’ . . . setting forth the factual and legal basis of the claim for relief . . . and a statement of the relief sought by the requesting party.”[3] Swinomish argued that because the RFD only raised issues of fair allocation of treaty-share salmon, Swinomish had not received adequate notice of Muckleshoot’s intent to litigate fishing ground claims. Swinomish claimed that Muckleshoot should have convened a conference before filing a separate subproceeding. The district court decided that there were no practical reasons for requiring compliance with this part of the decree, because both Lummi and Swinomish had had notice of the fishing ground issue for several years. Therefore, failure to file a separate subproceeding did not prejudice them. Also, Muckleshoot’s motion only sought clarification of two of the decree’s findings, not a determination of a new issue.

A decision regarding management of litigation is reviewed for abuse of discretion. Here, the Ninth Circuit held that there had been no abuse of discretion in entertaining Muckleshoot’s motion without a new subproceeding because the district court limited review to clarifying two prior findings of Phase I and Phase II. Neither Swinomish nor Lummi was prejudiced by the action of the district court, because both had had notice of Muckleshoot’s contention over Area 10 for many years. Clarification of fishing areas was relevant to the fairness of fish allocation, because allocation involves determining where the fish may be harvested.

The district court interpreted the finding of “usual and accustomed fishing grounds” in Phase I to exclude waters in Area 10, because the southernmost land point, Whidbey Island, lies seven miles north of the northernmost part of Area 10.[4] Swinomish argued that because the designated fishing grounds included “marine areas” surrounding Whidbey Island, these grounds were meant to include some of the northern part of Area 10. The Ninth Circuit disagreed, stating that the Swinomish had not offered any evidence suggesting that the district court’s factual findings regarding Swinomish’s fishing grounds were ambiguous or that the district court meant something other than the plain meaning of Phase I. Therefore, the court held that “marine areas of northern Puget Sound . . . south to and including Whidbey Island”[5] does not include any part of Area 10.

The usual and accustomed fishing grounds of the Lummi Tribe included the marine areas of Northern Puget Sound from the Fraser River south to the “present environs of Seattle,”[6] a definition derived from a report from Dr. Lane and relied on in Phase I. The district court concluded that Judge Boldt in Phase I had meant to adopt Dr. Lane’s intended meaning, even though this meaning was not discerned until a deposition taken in August 1995, more than twenty years after the decision was handed down. Lummi claimed that admission of this testimony was error, because the definition was not part of the original decree. In determining the meaning of an ambiguous judgment, the record before the issuing court and the findings of fact should be consulted. The Ninth Circuit concluded that “present environs of Seattle” is ambiguous, because Judge Boldt did not give the exact location of the “environs of Seattle” at the time of his decision. Because Phase I and Phase II did not clarify this phrase, it would be speculation to assume that Judge Boldt would have adopted Dr. Lane’s meaning had he been aware of it. Therefore, the district court had erred by using this later testimony to determine Judge Boldt’s intended meaning.

The Ninth Circuit also held that the district court had erred in entering a supplemental finding under the decree to determine the location of a tribe’s usual and accustomed fishing grounds not specifically determined by Phase I. The appellate court first observed that all parties had not been allowed to present evidence. Second, although the decree had reserved continuing jurisdiction, there was no express authorization for the court to resolve an ambiguity with supplemental findings that would change the description of fishing grounds in the decree. However, the court held that the district court did have jurisdiction to determine whether actions of the parties conformed with Phase I. The RFD and later proceedings under it involved whether the southern portion of the areas in which the Lummi Tribe is currently taking fish conforms to the decree. The parties had failed to offer evidence that would allow the district court to give specificity to the geographic terms of the decree. Consequently, this issue should be addressed on remand to the district court.

Judge O’Scannlain dissented, stating that the deposition of Dr. Lane had been properly considered by the district court.

[1] 384 F. Supp. 312 (W.D. Wash. 1974).

[2] 459 F. Supp. 1020 (W.D. Wash. 1978).

[3] 384 F. Supp. at 419.

[4] Id. at 398.

[5] Id. at 360.

[6] Id.

In early 1997, the Federal Aviation Administration (FAA) began to design the Los Angeles International Airport (LAX) East Arrival Enhancement Project (AEP). The purpose of the project is to reduce air traffic into LAX from the east and to increase the overall safety of arrivals. The AEP would require shifting flight patterns so as to cross the Morongo Indian Reservation, located about ninety miles east of Los Angeles.

FAA solicited comments from the Morongo Band of Mission Indians (the Band) under the National Environmental Policy Act (NEPA).[1] The Band objected to the new AEP, claiming that increased flights over the Reservation would interfere with their cultural and spiritual ceremonies. The Band proposed an alternative route that would avoid the Reservation, and FAA included it in the final environmental assessment (EA) for the AEP. After public comment on the final EA, FAA nevertheless chose an alternative that would reroute LAX air traffic over the Reservation. FAA issued a finding of no significant impact (FONSI) on October 24, 1997 and a record of decision (ROD) on January 30, 1998, and implemented the decision on March 10, 1998.

The Band petitioned for review of the agency’s decision, raising several issues before the Ninth Circuit. First, the Band argued that the United States and its agencies bore a trust responsibility toward the Band, and that FAA had violated that trust when it implemented the AEP. The court conceded that the United States has a trust responsibility towards the Band, but that “unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency’s compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.”[2]

The court next turned to the Band’s NEPA claims, which included whether the FAA had 1) evaluated a reasonable range of alternatives, 2) evaluated noise impacts from the AEP, 3) improperly segmented the AEP from the general LAX expansion project, and 4) failed to address the cumulative impacts of the AEP. The court first noted that FAA had considered two alternatives that avoided the Reservation, but that these alternatives did not meet the purpose and need of the AEP, which was to create a new airspace sector in order to increase safety at LAX. Because NEPA only requires agencies to consider reasonable alternatives that meet the purposes and needs of a project, FAA’s decision to reject the alternatives that did not encroach upon the Reservation was reasonable. Furthermore, the court rejected the testimony of the Band’s expert witness (who stated that the purpose and need of the project could be met without increasing flights over the Reservation), noting that agencies have the discretion on their own experts.

Second, the court rejected the Band’s contention that FAA had failed to adequately analyze the impacts from increased noise potentially caused by implementation of the AEP. The Band proffered several expert witnesses who testified that the agency had not properly calculated the increased noise from the AEP, but the court refused to referee a battle of the experts between the agency and the Band. Instead, the court held that it was not arbitrary and capricious for FAA to use its own methods in calculating noise over the Reservation.

Third, the court turned to whether FAA had improperly segmented the AEP from the LAX expansion project. The court turned to whether FAA had failed to analyze the cumulative impacts of the two projects by improperly segmenting the AEP from the LAX expansion project. The court analyzed the NEPA regulation regarding connected actions[3] as well as existing Ninth Circuit case law on connected actions[4] and found that the AEP could exist independently from the LAX expansion project. While the expansion project dealt with increasing the size of the airport, the AEP “was [intended] to deal with existing problems of delay and inefficiency in the arrival system.”[5] Because the two projects were not dependent on each other for their completion, FAA had been reasonable in discussing the impacts from each project in separate NEPA documents.

Next, the Ninth Circuit rejected the Band’s claim that FAA had failed to address the cumulative impacts from the expansion and AEP projects. Although the two projects were similar because they both concerned the arrival system at LAX, FAA had adequately considered the impacts from both projects in several documents including the AEP Environmental assessment, the LAX Master Plan study, and terminal radar approach control facility projections. As a result, FAA had satisfied its NEPA duty to consider the cumulative impacts from both projects.

The court then turned to claims raised by the Band that FAA had violated the National Historic Preservation Act (NHPA)[6] when it failed 1) to prepare an environmental impact statement (EIS) that considered whether the AEP would adversely affect “any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register;”[7] and 2) to obtain the Band’s permission to implement the AEP. The court noted that all of the visual and acoustic studies showed that the impacts to the Reservation and its eligibility for placement on the National Register would be minimal; as a result, no EIS was required. Furthermore, the court explained that although the NHPA required FAA to follow up on any information received from the Band regarding historical or cultural property within the project area, the agency’s failure in this case to do so was not fatal, because the agency had already determined that there would be no effect to the Reservation from the AEP. The court also rejected the Band’s contention that the NHPA required the FAA to obtain the consent of the Band to implement the AEP, because “[c]onsent is required . . . only if the action is found to have an effect on the land and, here, a finding of no effect was made.”[8]

Finally, the court addressed the Band’s claim that FAA had violated Section 4(f) of the Transportation Act.[9] Section 4(f) prohibits the “use” of historic sites unless there is no prudent and feasible alternative to the project and the project includes minimization methods to reduce the amount of harm to the site.[10] Noting that Section 4(f) only applies if there is in fact a “use” of the site, the court accepted the government’s argument that an FAA order properly excluded the type of activity in the present case from categorization as a “use” of land. Because FAA had previously concluded that the AEP “‘would not affect the normal activity or aesthetic value of the land,’”[11] there was no use of the Reservation, and FAA had not violated the Transportation Act.

[1] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370d (1994 & Supp. III 1997).

[2] Morongo Band of Mission Indians v. Federal Aviation Admin., 161 F.3d 569, 574 (9th Cir. 1998).

[3] 40 C.F.R. § 1508.25(a)(1) (1998).

[4] The court principally addressed Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985) (timber sale and access road are connected actions), and Save the Yaak Committee v. Block, 840 F.2d 714 (9th Cir. 1988) (same).

[5] 161 F.3d at 574.

[6] National Historic Preservation Act of 1966, 16 U.S.C. §§ 470-470mm (1994 & Supp. III 1997).

[7] Id. § 470(f) (1994).

[8] 161 F.3d at 582.

[9] Department of Transportation Act of 1966, Pub. L. No. 89-670, 80 Stat. 931 (codified as amended in scattered sections of 49 U.S.C. (1994)).

[10] 49 U.S.C. § 303(c) (1994).

[11] 161 F.3d at 582 (quoting FAA’s final EA).

In 1995, the Environmental Protection Agency (EPA) granted the Confederated Salish and Kootenai Tribes of the Flathead Reservation (Tribes) “treatment as state” (TAS) status under the Clean Water Act (CWA),[2] authorizing the Tribes to set water quality standards for all navigable waterways within their reservation. The State of Montana and others owning land in fee within the reservation challenged this grant of authority. The Ninth Circuit upheld the grant of TAS status to the Tribes, holding that EPA’s regulations properly applied the doctrine of inherent tribal authority in extending the Tribes’ regulatory authority over nonmembers on fee land within the reservation. The court also denied standing to irrigation districts and individual irrigators who sought to intervene.

Under the CWA, states and tribes that are granted TAS status set water quality standards for waters under their jurisdiction.[3] States and tribes are then charged with certifying that each discharge permit issued under the National Pollutant Discharge Elimination System (NPDES) does not derogate those standards.[4] In this case, Montana argued that that the grant of TAS status to the Tribes allowed the Tribes to set water quality standards that would apply to all emissions within the reservation, including those originating on land owned in fee by nonmembers of the Tribe. Montana claimed that this was an improper extension of the Tribes’ authority beyond that necessary for self-governance.

In issuing regulations governing the grant of TAS status, EPA adopted the standard of inherent tribal authority, a standard developed by the Supreme Court to determine when a tribe may regulate nontribal activities. Under this standard, the activity the tribe seeks to regulate must “‘serious[ly] and substantial[ly]‘” affect “the political integrity, the economic security, or the health or welfare of the tribe.”[5] In order to meet its burden under the regulations, a tribe must show that 1) the tribe uses waters located within the reservation, 2) those waters are subject to protection under the CWA, and 3) impairment of those waters would have a serious and substantial effect on the tribe’s health and welfare.[6]

The Ninth Circuit held that these regulations properly delineate the scope of inherent tribal authority set forth by the United States Supreme Court in Montana v. United States.[7] In that case, the Court held that absent express authorization by statute or treaty, tribes lack civil jurisdiction over nonmembers’ activities on fee land within a reservation. The Supreme Court recognized the following two exceptions to this rule: 1) when nonmembers enter into consensual relationships with tribal members; and 2) when nonmember conduct “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”[8] EPA adopted the language of the second exception in its own regulations, taking the view that TAS status represents a form of civil jurisdiction proper only when the conditions of the second Montana v. United States exception are met.

In upholding EPA’s regulations, the Ninth Circuit first stated that EPA’s choice of standard for granting TAS status was entitled to Chevron[9] deference because the statutory language and legislative history of the CWA are unclear as to which standard should be used to evaluate TAS status. Second, the court held that notwithstanding the deference accorded to the choice of standard, the application of that standard was a question of law to which EPA was entitled no deference because such application “has nothing to do with [EPA's] own expertise or with any need to fill interstitial gaps in the statute.”[10] Finally, the court nevertheless held that EPA had not made any material error of law in its application of the doctrine of inherent tribal authority.

In supporting the final holding, the court stated that in requiring the impacts on tribal health and welfare to rise to a “serious and substantial” level, EPA had properly taken into account the Supreme Court’s comments on inherent authority in Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation.[11] While Montana argued in the present case that Brendale repudiated the Montana v. United States standard of inherent authority, the Ninth Circuit rejected this argument, noting instead that the holding in Montana v. United States had been reaffirmed recently by the Supreme Court in Strate v. A-1 Contractors.[12] The Ninth Circuit also noted that EPA’s finding of serious and substantial threats to tribal health and welfare was supported by Ninth Circuit precedent holding that threats to water rights may invoke inherent authority.[13] Finally, the court explained that its decision was “fully consistent” with the Tenth Circuit’s recent holding that the authority to establish water quality standards more stringent than federal standards was “in accord with powers inherent in Indian tribal sovereignty.”[14]

On the question of intervention as of right by the irrigators, the Ninth Circuit upheld the district court’s holding that the intervenors did not have a protectable interest at stake in this case because they did not hold NPDES permits that would be modified by the Tribes’ exercise of TAS authority. The intervenors argued on appeal that their interest in the proceedings derived from 1) an alleged violation of their civil rights by the imposition of the Tribes’ standards, and 2) an alleged depression in value of their property caused by the water quality standards. In responding to these arguments, the court held that TAS status would not subject nonmembers to tribal enforcement authority–even if the nonmembers held NPDES permits–because EPA retains authority to issue and enforce permits in federal, not tribal courts. The court also noted that the possible effect on property values was speculative and did not present a protectable interest under the CWA, a statute that pertains to environmental concerns.

[1] For further discussion of Montana v. United States Environmental Protection Agency, see Regina Cutler, To Clear the Muddy Waters: Tribal Regulatory Authority Under Section 518 of the Clean Water Act, 29 Envtl. L. __ (1999).

[2] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (1994 & Supp. III 1997).

[3] Id. §§ 1313, 1377(e) (1994).

[4] Id. § 1341(a).

[5] Amendments to the Water Quality Standards Regulation that Pertain to Standards on Indian Reservations, 56 Fed. Reg. 64,876, 64,877 (Dec. 12, 1991).

[6] 56 Fed. Reg. at 64,879.

[7] 450 U.S. 544 (1981).

[8] Id. at 556.

[9] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[10] Montana v. United States Environmental Protection Agency, 137 F.3d 1135, 1140 (9th Cir. 1998).

[11] 492 U.S. 408 (1989).

[12] 520 U.S. 438 (1997).

[13] See Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981).

[14] Albuquerque v. Browner, 97 F.3d 415, 423 (10th Cir. 1996).

This case involved an appeal from two consolidated cases. Defendants appealed the district court’s grant of summary judgment in favor of the Yakama Indian Nation and individual Yakama Indians. The district court held that the treaty with the Yakamas exempted them from obtaining a Washington State truck license and from paying overweight permit fees.[1] The treaty clause at issue secures the Yakamas “the right, in common with citizens of the United States, to travel upon all public highways.”[2]

Washington law requires registration and licensing of trucks according to gross weight,[3] charges higher fees for greater weights,[4] and “requires log tolerance permits for certain overweight trucks along with payment of a fee.”[5] Individual Indians have never been exempt from these fees. Violations of the requirements result in traffic infractions.

Plaintiff-intervenor Yakama Indian Nation sells timber from lands held in trust by the United States for the Tribe’s and its members’ benefit. Individual plaintiffs either own logging operations or operate logging trucks that haul logs from timber sales within the reservation to off-reservation mills. Appellants are state officers authorized to issue traffic citations for violations of Washington State vehicle registration, licensing, and permitting statutes. Plaintiffs brought suit after the officers issued citations to Tiin-Ma Logging and Wheeler Logging drivers because their owners had neither paid tonnage licensing fees nor secured log tolerance permits for their trucks. The officers then began to cite drivers for failing to have proper registration. They continued to do so until the district court entered preliminary injunctions prohibiting the citations.

The issue on appeal was whether the state could impose licensing and permitting fees on logging trucks owned by the Yakama Nation or its members. The Yakamas claimed that the appellants had violated their travel rights under the treaty. The Ninth Circuit agreed with the Yakamas and affirmed the district court’s grant of summary judgment in their favor.

To determine the meaning of the “in common with” language as applied to the public highways right, the district court underwent an extensive evidentiary hearing. The district court explained that the treaty defined basic rights secured to the Yakamas that represented their way of life. It noted that travel was essential to the Yakamas’ way of life, allowing trade, subsistence, and maintenance of religious and cultural practices. The court also held that there was no mention of any sort of restriction on hunting, fishing, or travel during treaty negotiations other than the condition that the government be allowed to construct wagon roads and a railroad through the reservation, Additionally, the term “in common with” was never explained to the Indians; the court noted that the Yakamas understood the term to mean that there was no restriction placed on their usual practice of travel or their right to travel to market, and rejected the appellants’ argument that “in common with” placed the Indians on an equal footing with whites.

The Ninth Circuit reviewed de novo the interpretation and application of treaty language and reviewed the underlying factual findings for clear error. It reviewed for an abuse of discretion the district court’s ruling that non-Indians may exercise tribal treaty rights. The Ninth Circuit stated that United States Supreme Court precedent requires interpreting Indian treaties as the Indians would have understood them.[6] It held that the language of the treaty demonstrated the promises made by the United States to guarantee the Yakamas the right of free use of the public highways. This right includes the right to use future roads to carry out the Tribe’s customs. The court disagreed with the appellants’ argument that a travel right was inconsistent with the United States’s intent to assimilate the tribe into white culture. The court held that although the treaty had elements of assimilation, the United States had also wanted to satisfy the Yakamas, and that the appellants had not shown how the existence of assimilation elements in the treaty proved that the public highways clause could not serve the function of preserving Yakama customs.

Regarding the “in common with” language of the treaty, the Ninth Circuit approved of the district court’s deference to the manner in which the Indians would have naturally understood the terms of the treaty, and of the district court’s resolution of any doubts and ambiguities in the Indians’ favor. It also held that the district court’s interpretation was consistent with the United States Supreme Court’s interpretation of similar language in the context of treaty fishing rights. Moreover, the court also explained that there was no evidence that any Yakamas had expected to pay tolls, and approved of the district court’s finding that the Yakamas were unlikely to have understood the government’s policy towards Indians at the time the treaty was signed, therefore making this policy irrelevant to determining the extent of the travel right. It also noted that inclusion of the travel clause in only the Yakama and Nez Perce treaties demonstrated the importance of travel to the Yakamas.

The appellants claimed that the conduct of the parties to the Yakama treaty demonstrated their understanding that the Yakamas would follow settlers’ laws when they used off-reservation public highways. The Ninth Circuit held that posttreaty activity in this case was inconclusive, because the Indians had begun to challenge hauling and overweight fees in a timely manner soon after they had begun to haul tribal timber off-reservation.

The Ninth Circuit approved of the use of a tribal elder’s expert testimony on the issue of the Tribe’s understanding of the treaty language. It also held that the trial court had not abused its discretion when it allowed nontribal member agents of the Yakama Nation to exercise rights under the treaty. Because appellants had not objected to the district court’s ruling on tribal regulatory sovereignty, the Ninth Circuit held that they had no basis on which to object to the way the Yakama Nation chose to exercise its travel rights.

[1] Yakama Indian Nation v. Flores, 955 F. Supp. 1229, 1260 (E.D. Wash. 1997), aff’d, Cree v. Flores, 157 F.3d 762 (9th Cir. 1998).

[2] Treaty with the Yakamas, June 9, 1855, U.S.-Yakama Nation of Indians, art. III, 12 Stat. 951, 953.

[3] Wash. Rev. Code §§ 46.16.070, -16.135, -44.095 (1998).

[4] Id.

[5] Cree v. Flores, 157 F.3d at 765 (citing Wash. Rev. Code §§ 46.44.047, -44.095 (1998)).

[6] See generally Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970); Tulee v. Washington, 315 U.S. 681 (1942), United States v. Winans, 198 U.S. 371 (1905); Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979); Jones v. Meehan, 175 U.S. 1 (1899).

In a supplemental proceeding to Judge Boldt’s opinion in United States v. Washington (Boldt Decision),[1] as part of the ongoing litigation over Indian fishing rights in the Pacific Northwest, the Ninth Circuit held that fish caught by the Chehalis Indian Tribe would be attributed to Washington’s share of the harvest rather than against the treaty Tribes’ share.[2]

In 1859, the United States ratified the Treaty of Olympia[3] with the Hoh, Quileute, and Quinault Tribes. The treaty created a reservation for the Quinaults, and under Article III, the tribes were guaranteed “[t]he right of taking fish at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory.”[4] The Chehalis did not sign the Treaty of Olympia, but in 1864 the Secretary of Interior issued an executive order creating a reservation for the Tribe on the Chehalis River.[5] In 1974, the Boldt Decision allocated fishing rights between the State of Washington and the treaty tribes. The Supreme Court affirmed Judge Boldt’s equitable allocation in Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n (Fishing Vessel).[6] In 1983, Washington initiated this suit to determine allocation of fish caught by the Chehalis Tribe on its reservation (Chehalis harvest). Washington sought to attribute the Chehalis harvest to the Tribes that signed the Treaty of Olympia, rather than to the State, contending the harvest should be counted against the treaty Tribes’ share because they were caught under federally-secured fishing rights. The Quinault Indian Nation countered that the Chehalis harvest should be counted against the State’s share because the Chehalis were not a party to the Treaty of Olympia. The State moved for summary judgment, but the district court deferred its order until a separate ruling of Chehalis off-reservation fishing rights was completed in 1996.[7]

In an unpublished decision, the District Court for the Western District of Washington granted summary judgment to the Quinault.[8] The district court relied on the portion of the Boldt Decision that enjoined Washington from treating any off-reservation harvests as treaty fishing, unless the court determined a treaty tribe took the harvest.[9] The district court extended this logic to on-reservation activity and concluded that because the Chehalis were not fishing under treaty rights, it was not appropriate to attribute the Chehalis harvest against the treaty Tribes; rather, the Chehalis harvest should be attributed against the State. The Ninth Circuit affirmed.

After noting that the Chehalis Tribe was not a party to the Boldt Decision and that it was one of only two tribes in Washington with a reservation created by Executive Order,[10] the Ninth Circuit adopted the principle that “no catch by non-treaty Indians should be attributed to the treaty tribes.”[11] The court cited its earlier interpretation of the phrase “other citizens,” noting that treaty tribes are treated differently from non-treaty tribes in fishing litigation.[12] The Ninth Circuit held that the Chehalis harvest could not be attributed to the treaty tribes.

The Ninth Circuit recognized that to apply the Chehalis harvest against the treaty tribes “would diminish the value of those treaty rights, which were secured prior to the creation of the Chehalis reservation.”[13] The court applied the liberal canons of Indian treaty construction, which require that ambiguities be resolved in favor of the Indians.[14] Noting that these canons of construction apply to executive orders, the Ninth Circuit rejected Washington’s argument that this would effectively diminish the rights of the treaty tribes.[15]

[1] 384 F. Supp. 312 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975).

[2] United States v. Washington, 235 F.3d 438, 439 (9th Cir. 2000).

[3] Treaty of Olympia, Apr. 11, 1859, 12 Stat. 971, 2 Kappler 719.

[4] Id.

[5] Secretarial Order creating the Chehalis Indian Reservation, July 8, 1864, reprinted in 1 Kappler, Indian Affairs: Laws and Treaties 901, 903 (1904).

[6] 443 U.S. 658 (1979). “Both sides have a right, secured by treaty, to take a fair share of the available fish.” Id. at 684-65.

[7] See Confederated Tribes of Chehalis Indian Reservation v. Washington, 96 F.3d 334, 340 (9th Cir. 1996) (rejecting the Chehalis Tribe’s claim to off-reservation fishing rights because the Chehalis were not entitled to any fishing rights under the Treaty of Olympia).

[8] United States v. Washington, 235 F.3d 438, 440 (9th Cir. 2000).

[9] Id. at 441 (citing United States v. Washington, 459 F. Supp. 1020, 1037 (W.D. Wash. 1978)).

[10] 235 F.3d at 440.

[11] Id. at 441.

[12] Id. (citing United States v. Washington, 520 F.2d 676, 682 (9th Cir. 1975)).

[13] Id. at 441-42.

[14] Id. at 442 (citing Winters v. United States, 207 U.S. 564, 576 (1908)).

[15] Id. (citing Parravano v. Babbitt, 70 F.3d 539, 544 (9th Cir. 1995); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970)).

In the third supplemental proceeding, the Ninth Circuit held that Judge Boldt’s language, “secondarily in the waters of Puget Sound,” meant that the Muckleshoot Tribe’s usual and accustomed fishing grounds did not include any areas outside of Elliot Bay.[1] After the decision in United States v. Washington (Washington II),[2] the Muckleshoot Tribe sought to open fisheries in Area 11 of Puget Sound in 1998. Area 11 is a fishing zone that was designated by Washington state regulation after the Boldt Decision. In response to the Muckleshoot’s action, the Puyallup Indian Tribe filed a request for determination in district court. The Puyallup Tribe sought a determination that Judge Boldt did not include any areas outside of Elliot Bay (now known as Area 10A) within the Muckleshoot Tribe’s usual and accustomed saltwater fishing areas.[3] The district court held that the Muckleshoot Tribe’s usual and accustomed saltwater fishing grounds were limited to Elliot Bay. The Muckleshoot appealed and the Ninth Circuit affirmed.

This case required interpretation of the Boldt Decision phrase “secondarily in the waters of Puget Sound.”[4] The Ninth Circuit cautioned against applying canons of statutory construction to interpret the Boldt Decision, and affirmed the district court’s reliance on the documents actually before Judge Boldt, noting that documents and evidence “play a much larger and definitive role”[5] in interpreting judicial opinions than does legislative history in interpreting statutes. The court concluded that the district court interpreted the Boldt Decision solely on the evidence before Judge Boldt.

The Ninth Circuit agreed with the Muckleshoot’s argument that Judge Boldt’s use of the broad term “Puget Sound” was “perplexing in light of the geographic precision he generally used in describing [usual and accustomed fishing grounds].”[6] Nonetheless, the Ninth Circuit held that there was no evidence in the record before Judge Boldt to support a saltwater fishery beyond Elliot Bay for the Muckleshoot Tribe. The court analyzed exhibits that were in the record before Judge Boldt, concluding that the exhibits indicated that the Muckleshoot’s ancestors were predominantly an upriver people who primarily relied on freshwater fishing. The Muckleshoot Tribe disagreed, citing other exhibits before Judge Boldt, which they argued established Muckleshoot’s ancestors had usual and accustomed fishing grounds beyond Elliot Bay. The Ninth Circuit considered this evidence, but came to the opposite conclusion. Most important to the court’s consideration of the exhibits was that all references to Muckleshoot saltwater fishing pertained to the Duwamish drainage system, which empties only into Elliot Bay. The facts before Judge Boldt suggested that the Muckleshoot’s ancestors only occasionally fished outside of Elliot Bay on their way to collect shellfish and to catch devil fish. The Ninth Circuit held that such incidental trolling could not support a finding of “usual and accustomed fishing grounds.”[7]

Finally, the Ninth Circuit rejected the Muckleshoot’s argument that findings of fact made by the Indian Claims Commission (ICC) in 1966, involving the Puyallup Tribe, supports a broad reading of the term “Puget Sound” in the Boldt Decision. The ICC had suggested that ancestors of the Muckleshoot used islands in southern Puget Sound. The Ninth Circuit was not persuaded, noting that Judge Boldt previously refused to apply an ICC finding in a case involving the Nooksack Tribe.[8]

[1] United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000) (quoting Boldt Decision, 384 F. Supp. at 367).

[2] 873 F. Supp. 1422 (W.D. Wash. 1994), aff’d in part and rev’d in part, 157 F.3d 630 (9th Cir. 1998).

[3] In addition to the Puyallup, the district court permitted the Suquamish Indian Tribe and the Swinomish Indian Tribal Community to intervene and file a cross-request for determination, seeking a similar ruling.

[4] Id. at 432 (quoting Boldt Decision, 384 F. Supp at 367).

[5] Id. at 433.

[6] Id.

[7] Id. at 436-37.

[8] Id. at 437-38 (citing United States v. Washington, 459 F. Supp. 1020, 1042 (W.D. Wash. 1978)).

In the second supplemental proceeding regarding these three disputed areas, the Ninth Circuit held that the Lummi Tribe’s usual and accustomed fishing grounds included Admiralty Inlet, but did not include the Strait of Juan de Fuca or the mouth of Hood Canal.[1] This appeal involved the scope of treaty-reserved fishing rights secured by the Lummi Indian Tribe in the 1855 Treaty of Point Elliott.[2] The Lower Elwha Band of S’Klallams, the Jamestown Band of S’Klallams, the Port Gamble Band of S’Klallams, and the Skokomish Indian Tribe (collectively “Four Tribes”) initiated this action to determine the extent of the Lummi Tribe’s “usual and accustomed grounds and stations.”[3]

Almost fifteen years after the Boldt Decision, the Four Tribes initiated this request for a determination of fishing rights, pursuant to the ongoing jurisdiction of the District Court for the Western District of Washington.[4] The Four Tribes sought a declaration that the Lummi Tribe was violating the Boldt Decision by fishing in the three disputed areas. The district court granted summary judgment in favor of the Four Tribes in 1990, but did not enter a final judgment. The Lummi Tribe filed an amended response to the Four Tribes’ request for a determination and a cross-request for a determination that the Lummi Tribe’s usual and accustomed grounds should be expanded to include the three disputed areas. After a lengthy delay in the litigation, the district court eventually dismissed the case in 1998, applying the law of the case doctrine and accepting the 1990 conclusion that Judge Boldt did not intend the Lummi Tribe’s usual and accustomed fishing grounds to include the Strait of Juan de Fuca, Admiralty Inlet, or the mouth of the Hood Canal.[5] The Lummi Tribe appealed to the Ninth Circuit.

The Four Tribes urged the Ninth Circuit to deny review, arguing that the 1990 decision was final and that the 1998 application of the law of the case doctrine insulated the earlier order from review.[6] The Ninth Circuit rejected both arguments, reasoning first that Rule 58[7] protects parties from uncertainty, and since the district court did not enter a separate document in 1990, that order was not final.[8] The Ninth Circuit also rejected the Four Tribes’ second claim, noting that the 1990 decision, which was not final, merged into the final judgment entered in 1998.[9] Furthermore, the court rejected the Lummi’s contention that the district court improperly refused to disturb its earlier decision.

The Ninth Circuit then addressed the merits of the appeal. After deciding that Judge Boldt’s language was ambiguous, the court reviewed the evidence that the district court used to determine the intent of the Boldt Decision.[10] In addition to looking at the exhibits presented to Judge Boldt, the district court also received new testimony from an anthropologist who had testified as an expert witness in the Boldt Decision.[11] The anthropologist’s new testimony indicated that at the time of the Boldt Decision, she did not intend for her report’s reference to Haro, Rosario, and Georgia Straits to include the Strait of Juan de Fuca, and she had not expressed any conclusion as to whether the Lummi Tribe’s usual and accustomed fishing grounds extended to Admiralty Inlet. She also testified that she was unable to form a conclusion regarding the three disputed areas, but that she did not consider the term “Northern Puget Sound” to include the three disputed areas.[12]

The Lummi Tribe argued that the district court improperly considered the anthropologist’s testimony because it constituted the type of latter-day testimony that the Ninth Circuit admonished in Muckleshoot Tribe v. Lummi Indian Tribe.[13] The Ninth Circuit disagreed, noting that the district court focused directly on the exhibits attached to the anthropologist’s testimony, which were presented to Judge Boldt.[14] The Lummi next argued that the district court erred by not considering all of the evidence before Judge Boldt in proper context, contending that Judge Boldt defined the fishing areas in broad and general ways that included the three disputed areas. The court also rejected this argument, noting that the specific evidence submitted to Judge Boldt supported the district court’s interpretation of the Boldt Decision.[15] The Ninth Circuit further stated that it was reasonable to conclude that Judge Boldt relied on the expert opinion, rather than on testimony from Lummi elders, to determine the usual and accustomed fishing grounds.[16]

In short, the Ninth Circuit held that the term “Puget Sound” does not include the Strait of Juan de Fuca or Hood Canal because Judge Boldt distinguished between these terms throughout the Boldt Decision.[17] However, the court noted that the Boldt Decision contained no references to Admiralty Inlet. The Ninth Circuit rejected the Four Tribes’ argument that Judge Boldt recognized Admiralty Inlet as a separate region from Puget Sound because he did not expressly name that region within the Lummi’s usual and accustomed fishing grounds. In reversing the district court, the Ninth Circuit held that Judge Boldt intended to include Admiralty Inlet within the Lummi Tribe’s usual and accustomed fishing grounds because the Lummi would have to travel through the Inlet to reach the present environs of Seattle.[18]

[1] United States v. Lummi Indian Tribe, 235 F.3d 443, 445 (9th Cir. 2000).

[2] Treaty with the Dwamish (Treaty of Point Elliot), Act of Jan. 22, 1855, art. V, 12 Stat. 927, 2 Kappler 669.

[3] Id. at 928.

[4] 235 F.3d at 446 (citing Boldt Decision, 384 F. Supp. 312, 419 (W.D. Wash. 1974)).

[5] Id. at 445 (citing Boldt Decision, 384 F. Supp. at 332).

[6] Id. at 447-48.

[7] Fed. R. Civ. P. 58 (“Every judgment shall be set forth on a separate document.”).

[8] 235 F.3d at 448-49.

[9] Id. at 449.

[10] Id. (citing Boldt Decision, 384 F. Supp. at 360 (“the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle”)).

[11] Id.

[12] Id. at 450.

[13] 141 F.3d 1355 (9th Cir. 1998).

[14] 235 F.3d at 450.

[15] Id. at 451.

[16] Id. (citing United States v. Lummi Indian Tribe, 841 F.2d 317, 319 (9th Cir. 1988) (noting that “elder testimony is not the most accurate documentary evidence”)).

[17] Id. at 452 (citing Boldt Decision, 384 F. Supp. 312, 353, 360, 364-65, 390 (W.D. Wash. 1974)).

[18] Id.