9th Circuit OKs Court-Ordered Tribal Fishing Boundaries

(CN) – The Ninth Circuit affirmed a court-approved expansion Monday of fishing territories belonging to two Washington state tribes, rejecting a neighboring tribe’s claims that a judge improperly based the new boundaries on traditional whaling and sealing evidence, not fishing.

The case stems from a 1974 injunction by U.S. District Judge George Hugo Bolt in U.S. v. Washington, which affirmed certain tribal fishing rights the state had been denying. The Makah filed a subproceeding in 2009 to determine the usual and accustomed, or U&A, fishing ground of the Quileute and Quinault, claiming the tribes were fishing beyond their boundaries.

The Quileute and Quinault’s “right of taking fish at all usual and accustomed grounds and stations” is protected under the 1855 Treaty of Olympia.

After a 23-day trial in 2015, U.S. District Judge Ricardo Martinez ruled the Makah’s usual and accustomed fishing grounds only extended 40 miles offshore, not 100 miles as the tribe claimed.

The judge set the Quinault Indian Nation’s western boundary at 30 miles offshore based on its customary harvest travels in 1855, and the Quileute tribe’s boundary at 40 miles.

The Makah appealed, arguing the Quileute and Quinault pursued whales and seals much further out to sea than fish, and Martinez wrongly determined all the waters were used for fishing.

On Monday, a three-judge appellate panel ruled evidence of whaling and sealing was appropriately used by the lower court to determine the new fishing territory, but reversed an order imposing longitudinal boundaries where the tribes could fish because the lines drawn “far exceed the court’s underlying factual findings,” according to the opinion written by Circuit Judge M. Margaret McKeown.

“Based on the considerable evidence submitted throughout the lengthy trial, the district court’s finding that the Quileute and Quinault intended the treaty’s ‘right of taking fish’ to include whales and seals was neither illogical, implausible, nor contrary to the record. We conclude that the district court properly looked to the tribes’ evidence of taking whales and seals to establish the U&A for the Quileute and the Quinault and did not err in its interpretation of the Treaty of Olympia,” McKeown wrote.

The panel found that “the law does not dictate any particular approach or remedy” to draw new longitudinal boundaries and remanded for Martinez to draw “fair and consistent” limits.

Circuit Judge Michael Hawkins and U.S. District Judge Elizabeth Foote, sitting by designation from the Western District of Louisiana, joined in McKeown’s opinion.

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