A Meaningful Right to Fish Part Two

By Bruce Davies

In 1970 a complaint was filed in federal court to clarify the right to fish that tribes had reserved in the Stevens Treaties. The case became United States v. Washington and has been in litigation ever since. Hundreds of sub-proceedings have been decided, dozens of appeals have been heard and the Supreme Court has considered the case twice.  Part One covers the period from treaty times to 1979 when the Supreme Court in the Passenger Vessel decision affirmed the1974  trial court decision of Judge Boldt.  Part Two in a separate volume describes  the next  forty-five years. Numerous sub-proceedings have been litigated over allocation, management of fish harvests, the right to harvest shellfish, the location of tribal fishing areas and the protection of fish  habitat. It is perhaps the most complex case in the American legal system. It profoundly influenced fisheries science and management and played an oversized role in the politics of the Pacific Northwest.

• Language: English
• Publisher: Bruce Davies
• Release date: Jan 23, 2021
• ISBN: 9781736542910

Bruce Davies

Bruce Davies is a retired lawyer who worked on a variety of legal issues and as counsel for tribes and other organizations. Since retirment he has written on contemporary Natifve American history

Book preview

11. Paragraph 25

This chapter describes litigation allowed in United States v. Washington under the continuing jurisdiction of the court and the steps judges took to trim back the number of Sub-proceeings encouraged by this opening of the courthouse doors.

In Decision I Judge Boldt declared:

(A)ll parties have urged that the court reserve continuing jurisdiction of this case and have suggested variou ways in which such jurisdiction might be exercised… From the beginning, most, if not all, counsel in this case and the court have anticipated that continuing jurisdiction would be of great value to all parties in promptly putting the court’s rulings into effect and in providing readily available early hearing and determination of factual and legal questions that may arise in interpreting and applying such rulings. Accordingly the court does hereby reserve continuing jurisdiction of this case without limitation at this time.[1]

In Paragraph 25 of the March 22, 1974, Permanent Injunction Judge Boldt identified seven questions the court would consider under this reservation of continuing jurisdiction.

(a) Whether or not the actions intended or effected by any party (including the party seeking a determination) are in conformity with Final Decision # 1 or this injunction;

(b) Whether a proposed state regulation is reasonable and necessary for conservation;

(c) Whether a tribe is entitled to exercise powers of self-regulation;

(d) Disputes concerning the subject matter of this case which the parties have been unable to resolve among themselves;

(e) Claims to returns of seized or damaged fishing gear or its value, as provided for in this injunction;

(f) The location of any of a tribe’s usual and accustomed fishing grounds not specifically determined by Final Decision # 1; and,

(g) Such other matters as the court may deem appropriate.

He set forth a procedure parties had to follow to bring questions before the court:

In order to invoke such jurisdiction the party shall file with the clerk of this court and serve upon all other parties (through their counsel of record, if any) a ’Request for Determination’ setting forth the factual nature of the request and any legal authorities and argument which may assist the court, along with a statement that unsuccessful efforts have been made by the parties to resolve the matter, whether a hearing is required, and any factors which bear on the urgency of the request. Any party shall have an opportunity to respond to, join in, or supplement the request within seven days of its service or such other time as may be directed by the court. The court may then decide the matter, hold a hearing, or refer the matter to the special master to hear evidence and legal argument as soon as is practicable. If the matter is referred to the special master, he shall have authority to summon witnesses, issue subpoenas, hold hearings and take such evidence as may be introduced and as he may deem necessary to call for. The master shall, with all convenient speed, submit to the court, with copies for all parties (through their counsel of record, if any), a report of his factual findings, conclusions of law based upon them where necessary, along with his recommended disposition and reasons in support of it. The parties may submit to the court exceptions to the master’s report. The master’s report shall be subject, in whole or in part, to consideration, revision or approval by the court, and in every case the court shall make the final determination. This injunction shall not alter or deprive the parties of any right to bring motions or other matters before this court as provided in the Federal Rules of Civil Procedure.[2]

Disputes arising under Paragraph 25 have been called Sub-proceeding". Over the years Sub-proceedings have been litigated under several subsections of Paragraph 25, but the great majority arose under (a), whether an action is in conformity with Decision I, and (f), the location of a tribe's usual and accustomed fishing ground (U & A). A few proceedings did not begin as Sub-proceedings. For example, the lengthy and complex Samish litigation was initiated by a Motion to Intervene in the main proceeding. Other proceedings began as separate cases but were later consolidated into United States v. Washington.

Judge Boldt’s version of Paragraph 25 was in effect for nearly 20 years and, during this period, Sub-proceedings flourished like kudzu. Often several Sub-proceedings were in litigation at the same time. Some Sub-proceedings were long lived - they were actively litigated for a few years, then languished in suspended animation for a few years and then came back to life - or they bounced back and forth between the District Court and the Ninth Circuit.

Sub-proceedings were not numbered until sometime in 1980, when the clerk’s office created a system to track the documents that were filed in the now numerous Sub-proceedings. The numbering system included a year and a case number for each new Sub-proceeding that was initiated during a year (for example: 80-01, 80-02 and 80-3). The clerk’s office did not number most of the Sub-proceedings that were initiated before 1980. The two exceptions, Sub-proceedings 75-01 and 79-01, were long-lived Sub-proceedings that were actively litigated after the numbering system was created. The clerk’s office gave numbers to these Sub-proceedings in order to track post 1980 filings.

The late creation of the numbering system may explain one puzzle. In 1993, when Magistrate Weinberg suggested United States v. Washington be sunsetted, he estimated there were hundreds of Sub-proceedings. But in 1994 a tribal brief in the Shellfish Sub-proceeding estimated that there were only 80 numbered Sub-proceedings. This discrepancy can be explained if all the court orders that were included in Decision II and Decision III were added to the officially numbered Sub-proceedings.

In 1995 the Implementation Plan in the Shellfish Sub-proceeding (89-01) created a new dispute resolution process. Section 9 of the Plan allowed parties to submit shellfish implementation disputes to a Special Master. Later the parties negotiated a Revised Shellfish Implementation Plan that replaced the Special Master with a Judge Magistrate and allowed appeals of these decisions to the District Court judge. This dispute resolution procedure seems to bypass Paragraph 25 requirements.[3]

Shellfish Sub-sub-proceeding litigation recreated the document tracking problems that led to the creation of the case numbering system in the first place. The Clerk’s Office realized that filings in shellfish Sub-Sub-proceedings also needed to be tracked and the Clerk proposed a numbering system for shellfish Sub-sub-proceedings. On April 29, 2004, the District Court adopted the proposal.[4] Since some of the shellfish Sub-sub-proceedings had been in litigation prior to the creation of the new numbering system, it is difficult to distinguish pre-2004 filings in these newly numbered Sub-sub-proceedings from filings in the ongoing Shellfish 89-01 Sub-proceeding.

In 1993 Magistrate Weinberg suggested that the continuing jurisdiction of United States v. Washington be terminated. In April 1993 Judge Rothstein developed a proposed Sunset Order, circulated it to the attorneys, and scheduled a hearing for arguments on the proposed Order. At the June 10 hearing on the proposed Order all the attorneys opposed sunsetting the case, primarily because all the governments had waived sovereign immunity for purposes of the original 1974 litigation. Many of the lawyers believed it would be very difficult for all the parties to agree to waive sovereign immunity in future litigation over fisheries issues.

In Order Regarding the Status Conference of June 10, 1993, Judge Rothstein described problems she had with continuing jurisdiction litigation. She felt the case needed to be brought into manageable proportions and a mechanism was needed to get emergency matters before the court. She also wanted to avoid premature filings when court involvement might not be necessary to resolve a dispute. But, she concluded:

…the Court declined to enter the proposed Sunset Order and will retain jurisdiction over this case. Orders previously entered in this case shall remain in full force and effect, unless expressly modified by this court. New sub-proceedings may be filed with the court in the manner specified in previous court orders. The court will review the procedures in paragraph 25 of the 3/22/74 Injunction entered by Judge Boldt… Counsel are directed to submit to the Court, no later than 7/12/93, proposed procedures addressing four issues: ADR procedures, special master, emergency adjudications and paragraph 25 of the 3/22/74 Order.[5]

Judge Rothstein asked the attorneys to organize and simplify the pending Sub-proceedings, resolve as many as possible, or agree upon trial dates for the disputes that could not be resolved. The attorneys negotiated settlements and reduced the number of Sub-proceedings. On June 23, 1993, Judge Rothstein entered an Order that dismissed several Sub-proceedings without prejudice.[6] She also identified the remaining active sub-proceedings.[7]

On July 30, 1993, the attorneys filed a joint Report to the Court in Response to the Order Regarding Status Conference of June 10, 1993. It included several proposed changes to Paragraph 25. A Meet and Confer requirement was added as a precondition to filing new Sub-proceedings. The Request For Determination (RFD) and Response steps were revised to conform more closely to federal notice pleading requirements. Procedures to address emergency matters were created that that were consistent with federal civil procedure rules regulating motions for temporary restraining orders and preliminary injunctions. [8]

Judge Rothstein accepted all the proposed changes in the Order Modifying Paragraph 25, issued on August 24, 1993. The section describing the seven categories of disputes was relabeled Paragraph 25(a) and the categories were changed from letters to numbers. She deleted the second portion of Paragraph 25 that described the process for initiating new Sub-proceedings.In its place she added a new sub-section - Paragraph 25(b). It described the steps that had to be completed before a party could file a new Sub-proceeding.[9]

Except in emergency matters, before filing a RFD a party seeking relief had to Meet and Confer with all parties ‘directly affected’ by the RFD. The Meet and Confer was an opportunity for the parties to discuss and settle the dispute. Several issues had to be discussed at the Meet and Confer:

(A) The basis for the relief sought by the requesting party;

(B) The possibility of settlement;

(C) Whether the matter was one properly for the Fisheries Advisory Board (FAB);

(D) Identification of technical issues relevant to the matter in controversy, areas of agreement and disagreement on such issues, and methods of developing an agreed technical basis to narrow or resolve the controversy;

(E) Whether independent extra-judicial actions (e.g. regulatory action by a government agency) might remove the need for, or warrant deferral of, an adjudication;

(F) Whether earlier rulings of the court had addressed or resolved the matter in issue in whole or part; and,

(G) Whether the parties could agree to mediation or arbitration of the issue before, or in lieu of, litigation.

The Meet and Confer is similar to a settlement conference under Federal Rule of Civil Procedure (FRCP) 26(f). The seven discussion items mirror the exchange of information requirement in FCRP 26(a). If the Meet and Confer fails to resolve the dispute, the parties could submit the dispute to mediation. Either party could demand mediation within twelve days after conclusion of an unsuccessful Meet and Confer. FRCP 39.1 sets forth the procedure for mediation. If mediation fails or is not demanded, the next step is to file a RFD with the court.

The RFD is like a complaint in a civil proceeding. It had to be filed with the Clerk and served on all other parties. It had to contain a short statement setting forth the factual and legal basis of the claim for relief. It could not exceed twelve pages. It could not contain legal argument or be accompanied by evidence. Counsel for the requesting party also had to file a declaration attesting to the party’s compliance with the prior steps in the process.

A party wishing to file a response to the RFD has to do so no later than sixty days after the date when the RFD is filed. The responding party could submit a counter-RFD if the counter-request related directly to the subject matter of the initial RFD. Cross-RFDs between respondents were discouraged and permitted only with prior court permission.

Counsel needed to submit a separate notice of appearance with the RFD or response. Motion practice and discovery followed Federal Rules of Civil Procedure. No later than ninety days after the initiation of a new Sub-proceeding, a party could file a motion seeking referral of the matter to a Special Master or Magistrate Judge. The motion had to specify the functions the party proposed to have delegated to that officer.

For emergency matters a party needed to satisfy the following conditions:

A. Initiate a Sub-proceeding by filing an RFD;

B. File with the RFD a motion for temporary restraining order or preliminary injunction that complied with applicable civil rules and legal standards; and,

C. File a declaration that counsel had made a bona fide attempt to resolve the emergency issue and failed to do so, that actual notice of the motion had been provided to each party that was the subject of the motion, and that the matter in issue constituted an emergency in the judgment of the party and its attorney.

Motions for temporary restraining orders were to be filed only when irreparable harm was likely to occur before a hearing on a preliminary injunction could be scheduled. Upon a receipt of a motion, the court was to schedule a hearing, advise parties if further briefing would be required and if oral testimony would be permitted or required at the hearing. Unless the court’s ruling on the motion finally disposed of the RFD, the RFD would be decided in the ordinary course of the court’s business.

Judge Rothstein’s version of Paragraph 25 was in effect for nearly 20 years. On November 9, 2011, Judge Martinez made some minor modifications to Paragraph 25. RFDs now had to identify requesting and responding or affected parties. An order granting leave to file a new RFD was not a final determination that the dispute was within the court’s Paragraph 25 continuing jurisdiction. The responding party could still question jurisdiction. Parties who were not named as requesting or responding parties in the RFD could file a Notice of Appearance as an Interested Party and participate in the litigation.[10]

The court interpreted the Meet and Confer requirement several times. In November 1993, three parties who were trying to intervene as treaty tribes in United States v. Washington filed a motion to reopen a 1979 Order in light of new evidence. Other tribes opposed the motion on the ground the intervenors had not complied with the Meet and Confer requirement. On December 21,1993, Judge Rothstein issued a Minute Order that struck the motion to intervene, with leave to renote the motion, after the parties satisfied the Meet and Confer requirement. She held that, once the Meet and Confer requirement was satisfied, a new Sub-proceeding 93-02 could be opened.[11]

In 1989, in Sub-proceeding 89-02, the three s’Klallam Tribes claimed Lummi was violating Decision I by fishing in the Strait of Juan de Fuca, Admiralty Inlet and the mouth of Hood Canal.[12] Judge Boldt described the Lummi U & A in Decision I.[13] In 1990 in Sub-proceeding 89-02 Judge Coyle found Judge Boldt’s U & A language was ambiguous and held Lummi did not have a U & A in the three areas. Later, Judge Rothstein and the Ninth Circuit also issued opinions on this question. In 2000 the Ninth Circuit ruled that the Lummi U & A included Admiralty Inlet and but not the Strait and Hood Canal.[14] In 2009 the s’Klallams filed a motion in Sub-proceeding 89-02 to hold Lummi in contempt for violating the various rulings. They claimed Lummi was attempting to extend the western boundary of its U & A into the Strait of Juan de Fuca. Lummi replied that filing a motion in a closed Sub-proceeding was improper. The S’Klallams should have followed Paragraph 25 Meet and Confer requirements and then filed a new RFD to initiate a new Sub-proceeding.

On June 16, 2009, Judge Martinez agreed and dismissed the motion with leave to renew the claim in a new Sub-proceeding after a Meet and Confer was held. [15]

In 2008 the Suquamish Tribe filed a RFD on chum fishing in Catch Area 10 (Sub-proceeding 08-1). The Tulalip Tribes filed a motion to quash the Sub-proceeding and the parties stipulated to a Stay, pending completion of Meet and Confer requirements.[16] The tribes held settlement meetings but the meetings were not formally called Meet and Confers and the meetings apparently did not strictly conform to Paragraph 25 requirements. On December 10. 2009, Judge Martinez ordered the Suquamish to show cause why the case should not be dismissed.[17] By way of reply, the Suquamish filed a motion requesting a lift of the stay the parties had agreed to in 2008. The Suquamish argued that the RFD it filed in 2008 was based on a claim that Tulalip had not complied with an earlier 1983 Muckleshoot, Suquamish and Tulalip Settlement Agreement (MST). A provision in the MST permitted an aggrieved party to seek enforcement of the MST. Therefore, Suquamish argued that the parties had agreed to waive formal compliance with Meet and Confer requirements for disputes arising under the MST. Tulalip argued that the 2008 RFD went beyond the terms of the MST and raised new issues. The MST only addressed salmon harvests, but the 2008 RFD included geoduck and shellfish harvests.

On March 4, 2010, Judge Martinez ruled that the disagreement over the scope of the MST made it necessary for the parties to follow Meet and Confer procedures before initiating a new Sub-proceeding. He distinguished rulings in Muckleshoot I and Sub-proceeding 05-03 that waived Meet and Confer requirements. In Sub-proceeding 05-03, he held that a Meet and Confer was not necessary for cross-RFDs. Instead the party raising the cross-claim only had to seek leave of the court to file the claim.[18] In contrast, here Suquamish sought to initiate a new Sub-proceeding and waive the Meet and Confer requirements, which he characterized as an essential component of adequate notice to other tribes of the issues Suquamish wished to litigate.

In Muckleshoot I (Sub-proceeding 86-5), the Muckleshoot Tribe, joined by other south Puget Sound tribes, filed a RFD in 1986 to allocate the treaty share of salmon in Puget Sound. Muckleshoot asked the court to restrain several North Puget Sound tribes (including Lummi and Swinomish) from intercepting South Puget Sound salmon on their migrations through the Strait of Juan de Fuca and northern Puget Sound. The tribes resolved the dispute over the year’s harvest allocation before trial and the Sub-proceeding went into hibernation.

Several years later in 1995 the North Sound tribes moved to dismiss the Sub-proceeding. By way of reply, Muckleshoot filed a Motion for Summary Judgment against Swinomish and Lummi. In this motion Muckleshoot asked the court to find that the Swinomish and Lummi U & As did not include Catch Area 10. Catch Area 10 included waters adjacent to Seattle.

Swinomish claimed Muckleshoot should have initiated a new Sub-proceeding if it wanted to challenge the Swinomish U & A because the initial RFD in Sub-proceeding 86-5 only raised allocation issues. The District Court agreed that Muckleshoot failed to follow Paragraph 25, but also held that Swinomish failed to state a practical reason for requiring technical compliance with Paragraph 25. The judge then decided the Swinomish and Lummi U &As did not include Area 10.

Swinomish and Lummi appealed. Most of the appellate opinion addressed the U & A dispute but it also discussed continuing jurisdiction. [19] The District Court’s baed its jurisdiction on subsection (f), which allowed disputes over "the location of usual and accustomed fishing grounds not specifically determined by Decision I’. But the Nonth Circuit decided that, since Judge Boldt had already defined the Lummi U & A in an earlier decision, this provision did not authorize the court to clarify the meaning of terms used in the decree or to resolve an ambiguity with supplemental findings which alter, amend or enlarge upon the description in the decree. The panel held that the dispute fell under the subsection (a). This subsection permitted the court to "determine whether or not the actions by any party are in conformity with (Decision I)".[20]

Appellate judges questioned the need for continuing jurisdiction several times. The first was in Sub-proceeding 05-01. On January 24, 2005, the Jamestown and Port Gamble S’Klallam Tribes filed an RFD. Skokomish filed a Cross RFD. On March 30, 2005, Judge Martinez bifurcated the two claims. He numbered the S’Klallam RFD Sub-proceeding 05-01 and gave the Skokomish Tribe’s Cross-RFD number 05-2.[21]

There was a long history to this dispute. In 1981, in Sub-proceeding 81-01, Skokomish claimed a primary right to fish in Hood Canal. The parties settled this dispute with the Hood Canal Agreement. The Agreement recognized Skokomish’s primary right to fish in most of Hood Canal and defined the Port Gamble and Lower Elwha U & As in the northern portion of the Canal. The court adopted the Agreement.[22]

The Agreement broke down because the S’Klallam fisheries were located upstream from the Skokomish fisheries and the S’Klallams were able to intercept and harvest fish before the fish reached the area where Skokomish could exercise its primary right. When negotiations on joint harvest regulations failed, the Skokomish Tribe unilaterally issued its own fishing regulations. This prompted the Port Gamble and Jamestown s’Klallam Tribes to file Sub-proceeding 05-01 and claim that Skokomish had violated the Hood Canal Agreement. In its Cross-RFD Skokomish asked the court to equitably apportion the fishery.

Port Gamble and Jamestown moved to dismiss the Cross-RFD, citing lack of subject matter jurisdiction, res judicata and standing. Their argument focused on the sub-section of Paragraph 25 which reserved continuing jurisdiction over disputes concerning the subject matter of this case which the parties have been unable to resolve. The question was - did this provision give the court continuing jurisdiction to resolve inter-tribal harvest allocation disputes? Port Gamble and Jamestown argued that the Skokomish Cross-RFD did not fall within this provision because the parties had settled the question of allocation with the Hood Canal Agreement.

Judge Martinez used the dispute to make a broader ruling. He recognized that Decision I addressed the tribes’ treaty reserved fishing rights, but:

…While those treaty rights secured to the tribes the right to fish at their usual and accustomed fishing area, they did not create the equitable right of any one tribe to harvest a certain portion of the treaty share.

Thus, a dispute over the exercise of a tribe’s primary right or concerning its usual and accustomed fishing area, would fall under the Court’s jurisdiction, because it arises from a treaty right. But nowhere have the Moving Parties pointed to treaty language which confers upon any tribe, vis-à-vis another tribe, the right to an allocation of a portion of the treaty share of fish.

He admitted that in the past the court had resolved allocation disputes between tribes in prior Sub-proceedings but he distinguished those decisions on the grounds that that the parties had consented to the adjudication.[23] He concluded:

It is this Court’s view that equitable allocation is a management issue, and does not arise from the tribes’ treaty rights…

A simple request for equitable allocation, in the absence of factors by which one or more tribes may completely preempt another tribe’s right to fish does not present a legal issue for determination by this Court.

Judge Martinez concluded that Paragraph 25 did not confer continuing jurisdiction over the Skokomish Cross RFD because the rights and obligations of the parties had been set forth in the Hood Canal Agreement and the Agreement did not empower the court to allocate fish among the tribes.

On appeal the Ninth Circuit affirmed this ruling.[24] Judge Kleinfeld wrote the opinion. He held that Skokomish had not pleaded facts that would entitle it to equitable apportionment. But he went beyond this narrow issue to question continuing jurisdiction in general. He noted that the Stevens Treaties did not purport to settle disputes between the tribes. While the District Court might have jurisdiction to make such allocations, it also had discretion to decline to do so and on at least two occasions federal courts had disclaimed any responsibility for intertribal allocations.[25] He declared;

… intertribal allocations historically had been a matter for the tribes to resolve amongst themselves as sovereigns…

… for disputes among Indian tribes there is something to be said for a private dispute resolution procedure among themselves

Then in a lengthy passage that he admitted was dicta he declared:

We are puzzled, but need not reach the question, about why the equitable decree in this case remains in effect at all…

… It is hard to see what we achieve in our continuing adjudications. We pretend to be able to read the mind of a long deceased district court judge who initially based the decree on matter of which he did not speak. And we pretend to determine what the Indian tribes did 150 years ago at a time for which there is not evidence of especially high reliability and little evidence of any kind. This exercise is not law and is not a reliable way to find facts, so it is hard to see why courts are doing it and how it could be preferable to the Indian tribes working some dispute resolution system for themselves.

He noted that his opinion did not decide whether to continue, dissolve, or release the original decree because no one asked us to, but he suggested ways a request to terminate United States. v. Washington could be made.

In Quinault and Quileute U & A (Sub-proceeding 09-01) Makah initiated the Sub-proceeding to determine the boundaries of the Quileute and Quinault ocean U & As after the Quileute and Quinault Tribes filed request for a whiting fishery allocation with federal officials. Makah was concerned that the proposed fisheries would interfere with Makah’s already existing fisheries.

Quinault and Quileute argued that the court could not rule on the request because its continuing jurisdiction did not extend beyond the three mile state territorial boundary. The claim in Decision I involved state regulation of treaty fisheries and state regulatory power did not extend beyond the three mile limit. On July 8, 2013, citing the Herring Fisheries Order in Decision II,[28] Judge Martinez held that the court’s subject matter jurisdiction arose from the treaties, extended to all treaty related fishing, and was not limited to State of Washington waters.

Long-established rulings in this case mandate that any Tribe wishing to exercise a treaty right to take fish must do so within the confines of this case. The Tribes came to the Court in 1970 asking the Court to determine and enforce their treaty rights, and they subjected themselves to the Court’s jurisdiction for all purposes relating to the exercise of their treaty rights.[29]

In Sub-proceeding 17-01 the Skokomish Tribe asked the Court to confirm that it had a U & A outside the Hood Canal Drainage Basin. [30] The Squaxin Island Tribe argued that Skokomish failed to comply with Paragraph 25 procedures because, at the Meet and Confer, Skokomish only claimed a U & A in the Satsop fishery, but in the RFD it asked for a much larger U &A that included southwestern Puget Sound Inlets and the freshwaters that flowed into these inlets. Squaxin also argued that Skokomish failed to discuss at the Meet and Confer whether earlier rulings of the court had addressed the issue and failed to discuss the basis of the claim for relief. Skokomish admitted it modified the U & A claim after mediation was completed.

Judge Martinez held that Paragraph 25 requires the parties to negotiate and mediate issues in a meaningful way before initiating a formal proceeding. He wrote that he could dismiss the matter because of the Meet and Confer violation, but he decided instead to address the court’s continuing jurisdiction over the dispute. In its RFD, Skokomish failed to specify which of the subsections in Paragraph 25 applied. There were two possibilities. Paragraph 25 (a)(1) involed requuests to determine if the actions of a party were in conformity with Judge Boldt’s findings in Decision I. This subsection applied when the parties had a dispute over the boundaries of an existing U & A. Alternatively, Paragraph 25(a)(6) provided jurisdiction to identify the location of new U & As.

Skokomish claimed that a 1984 Sub-proceeding adopted language from Gibbs’s journal that described Skokomish territory and this language included the additional territory involved in the Sub-proceeding. Therefore it argued the present dispute could go forward as a Paragraph 25 (a)(1) Sub-proceeding. However, Judge Martinez found that the 1984 Sub-proceeding only addressed the question of whether Skokomish had a primary right to fish in Hood Canal. As a result, that Sub-proceeding could not provide the basis for this Sub-proceeding. He also found that Judge Boldt’s original determination of the Skokomish U & A was not ambiguous and therefore there was no need to conduct a Paragraph 25(a)(6) analysis (more on that in the U & A chapter). Judge Martinez warned.

Bringing disputes such as the instant case, where the filing party has failed to engage in the proper pre-filing requirements, has failed to identify the basis for continuing jurisdiction, and has misrepresented the record in what appears to be an attempt to circumvent the limitations of this Court’s continuing jurisdiction, only bolster the idea that perhaps the sun has set on Judge Boldt’s injunction and this Court’s continuing jurisdiction under it… all the Tribes, are reminded that their actions may ultimately be the impetus for the dissolution of any oversight by this Court. This reminder should be the driving force behind real efforts to resolve matters without Court intervention, and motivation to engage in genuine attempts to resolve conflicts without asking the Court to do so for them.

On appeal the Ninth Circuit affirmed. It found that the 1984 Sub-Proceeding only determined which tribe had primary rights in Hood Canal. The boundaries of Judge Boldt’s prior U & A determination were not changed. The panel held that the Skokomish Tribe failed to follow Paragraph 25 requirements.

Judge Bea went further and called for termination of continuing jurisdiction.[31] Judge Bea noted that in 2010 a judge had puzzled over why this Jarndyce and Jarndyce of an equitable decree remains in force at all… And yet here we are. Forty-five years after Judge Boldt issued an injunction… it remains in effect. In a separate concurring opinion he declared:

In the proceedings below, the district court opined that "bringing disputes such as the instant one … bolsters the idea that perhaps the sun has set on Judge Boldt’s injunction and this Court’s continuing jurisdiction. Our colleagues on this circuit have expressed that sentiment before… and I echo it here…

… Of course, we need not decide whether Judge Boldt’s decree should be altered because no party has asked us to… But we should reevaluate Judge Boldt’s equitable decree soon. The ultimate objective of the Boldt Decision was to finally settle … As many as possible of the divisive problems of treaty right fishing... At some point, this court should consider whether that objective has been met.

Initially, judges accepted jurisdiction over most of the disputes that arose during implementation of Decision I, even if the issues did not exactly fit within one of the seven Paragraph 25 categories. But over time, the judges began to limit litigation. For example, the Decision I complaints only asked the court to address treaty harvests of anadromous fish, state regulation of treaty harvests and habitat protection. But, in 1975, in Order re Herring Fisheries and Determination of Usual and Accustomed Fishing Places of Additional Tribes (3/28 and 4/18/75)[32] the state and some tribes filed RFDs on the treaty right to engage in herring or herring roe fisheries. Judge Boldt held that continuing jurisdiction permitted the court to deal with matters related to but not included in DecisionI:

Issues relating to…nonanadromous fishing are clearly within the subject matter jurisdiction of this federal district court … so that litigation with respect to such issues could clearly be brought before this court in separate actions. However equity favors prevention of a multiplicity of actions … and in the opinion of this court, proper exercise of its jurisdiction permits, and efficient administration of justice requires, this court to deal with matters related to, but not included within Final Decision #1 such as possible treaty-right nonanadromous fishing.[33]

In Order Denying Makah Tribe’s Motion to Dismiss 5/25/83,[34] the Quinault, Hoh and Quileute Tribes claimed that Makah’s ocean coho fishery interfered with their treaty right to fish for fall coho and chinook. The court had to decide if it had continuing jurisdiction to determine the treaty rights of one tribe as against another. Judge Craig noted that Judge Boldt had made such a ruling in Decision II[35], and distinguished language in Decision I that seemed to bar such litigation:

This court’s ruling that the question of intertribal allocation is a matter for the tribes rather than the state to resolve… prohibits the state from interfering with intertribal allocations but in no way limits this Court’s jurisdiction over this or any other matter that directly or indirectly affects interests in treaty right fishing.

He ordered the tribes to meet and confer and negotiate their differences. But later judges backpedaled from this ruling. Judge Martinez and the Ninth Circuit eventually held that the federal district court did not have continuing jurisdiction to resolve intertribal allocation disputes.[36]

The courts also limited litigation by rejecting collateral attacks on United States v. Washington and United States v. Oregon. In 1985 Makah filed a lawsuit outside of United States. v. Washington to establish its treaty right to halibut but Judge McGovern dismissed the case in 1992. He held that the tribe had to invoke the continuing jurisdiction of U.S. v. Washington if it wished to pursue the claim. Later he vacated his dismissal order and transferred the dispute to United States v. Washington.[37]

In the late 1980s, the Makah Tribe made two separate but related attempts outside of United States v. Oregon to assert a treaty right to harvest Columbia River origin salmon that passed through the tribe’s U & A. In Makah v. Verity the tribe challenged the 1987 ocean harvest plan developed by the Pacific Fisheries Management Council (PFMC). The PFMC plan limited ocean fishing on Columbia River salmon to ensure that enough fish reached the river to satisfy United States v. Oregon allocations. As a result, Makah ocean fishing on these stocks was restricted. The district court concluded that Makah sought to reallocate the harvest and the court could not grant this relief without involving the other Puget Sound and Columbia River Tribes. Since these tribes were immune from suit unless they waived their sovereign immunity, the case had to be dismissed. On appeal the Ninth Circuit panel agreed that, to the extent that the Makah sought a reallocation, the suit was barred, but the tribe could challenge the procedural fairness of the PFMC decision-making process. [38]

The Makah also attempted to intervene in United States v. Oregon to assert a treaty right to harvest a share of the Columbia River origin salmon. The district court had held that the Makah’s motion to intervene was untimely, prejudicial to the parties, and inappropriate, because the Makah fishery was regulated by the PFMC. It held that the tribe’s proper remedy was with that body. Intervening at this stage to challenge the plan would seriously prejudice all the parties to the suit because the plan is complex and delicately balanced. The same Ninth Circuit panel that decided Verity also upheld this ruling on appeal. The panel noted:

… The Makah seek to intervene precisely to regionalize negotiations over Columbia River fish. This greatly expands the scope of the existing case.

The district court concluded that at this stage it is too late in the proceeding to change the nature of the suit so dramatically. In