Lwr Elwha Klallam Indian Tribe v. Lummi Nation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-35936 Plaintiff, D.C. Nos. and 2:11-sp-00002-RSM 2:70-cv-09213-RSM

LOWER ELWHA KLALLAM

INDIAN TRIBE; JAMESTOWN

S’KLALLAM TRIBE; PORT OPINION

GAMBLE S’KLALLAM TRIBE,

Petitioners-Appellees,

v.

LUMMI NATION,

Respondent-Appellant,

and

STATE OF WASHINGTON,

Defendant.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted April 11, 2014—Seattle, Washington 2 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

Filed August 19, 2014

Before: Michael Daly Hawkins, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea; Dissent by Judge Rawlinson

SUMMARY*

Fishing Rights

The panel reversed the district court’s summary judgment entered in favor of the Klallam Tribe in a case involving a fishing territory dispute between two sets of Indian Tribes, brought pursuant to the continuing jurisdiction of the 1974 “Boldt Decree” issued by the U.S. District Court for the Western District of Washington.

The panel held…

dissenting:

I respectfully dissent from the majority’s conclusion that no court has determined whether the “usual and accustomed [fishing] grounds and stations” (U & A) for the Lummi Nation Tribe (Lummi) included the waters west of northern Whidbey Island.

In my view, the answer to this question is contained in our prior opinion, United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir.2000). That case also addressed a challenge to Judge Rothstein’s adherence to Judge Coyle’s previous determination that neither the Strait of Juan de Fuca, Admiralty Inlet nor the mouth of the Hood Canal were within the Lummi’s usual and accustomed fishing areas. See id. at 447 . Judge Rothstein’s adherence to Judge Coyle’s decision followed her application of the law of the case doctrine. See id.

As the district court noted, Judge Roth-stein was quite detailed in her description of the areas sought to be included by the Lummi in its U & A:

United States v. Washington, Nos. CV 70-9213 RSM, 11-SP-02, 2012 WL 4846239 at *6 (W.D.Wash., Oct. 11, 2012) (emphases added).

*1189 Judge Rothstein’s ruling encompassed the following facts:

On appeal of Judge Rothstein’s ruling, we reversed only to the…

This appeal involves a fishing territory dispute between two sets of Indian tribes: the Lower Elwha S’Klallam Tribe, the Jamestown S’Klallam Tribe, and the Port Gamble S’Klallam Tribe (“the Klallam”) on the one hand, and the Lummi Nation Tribe (“the Lummi”) on the other. The appeal arises from a proceeding brought by the Klallam pursuant to the continuing juris *1182 diction of a 1974 decree issued by the U.S. District Court for the Western District of Washington (“Boldt Decree”), and it involves a dispute over the geographic scope of the Lummi’s “usual and accustomed fishing grounds” (“U & A”). We must decide if a prior Ninth Circuit opinion has already decided whether the waters immediately to the west of northern Whidbey Island are a part of the Lummi’s U & A such that the question is controlled by law of the case. We conclude that the question has not yet been determined and therefore reverse and remand.

Factual and Procedural Summary

This case arises from a request for determination brought by the Klallam in 2011 to determine the fishing rights of the Lummi under the 1855 Treaty of Point Elliott. The Klallam initiated this subpro-ceeding for a determination of…