SEATTLE (CN) - A decades-old fight over tribal fishing rights went for another round as the Lummi Nation told the 9th Circuit about their exclusion from certain waters between Washington and Vancouver Island.
The case stems from a 1974 injunction by U.S. District Judge George Hugo Bolt in U.S. v Washington that affirmed certain tribal fishing rights the state had been denying. Numerous subproceedings were litigated in the case, and the Lummi filed multiple challenges to expand the area Bolt determined was their usual and accustomed, or U & A, fishing grounds.
In 1989, the S'Klallam and Skokomish Tribes requested a permanent injunction to prevent the Lummi from fishing in waters declared off-limits by Bolt, including the Strait of Juan de Fuca, Admiralty Inlet and the mouth of the Hood Canal.
U.S. District Judge Robert Coyle granted summary judgment against the Lummi in 1990, and the 9th Circuit ruled that the Strait of Juan de Fuca was excluded for Lummi fishing.
After the Lummi requested a new determination of their U & A waters, U.S. District Judge Barbara Rothstein dismissed the subproceeding and entered a judgment in favor of the S'Klallam and Skokomish.
The 9th Circuit again upheld with the exclusions but added the Admiralty Inlet waters to the Lummi's designated fishing area.
In 2009, the S'Klallam filed another subproceeding asking the Lummi to be held in contempt for continuing to fish in the eastern portion of the Strait of Juan de Fuca. The court found the request failed to follow proper procedure, so the S'Klallam filed again in 2011 asking for summary judgment.
U.S. District Judge Ricardo Martinez ruled for the S'Klallam in the latest action and found the usual and accustomed Lummi fishing area does not include the "eastern portion of the Strait of Juan de Fuca or the waters west of Whidbey Island, an area more specifically described as the marine waters east of a line running from Trial Island near Victoria, British Columbia, to Point Wilson at the westerly opening of Admiralty Inlet, bounded on the east by Admiralty Inlet and Whidbey Island, and bounded on the north by Rosario Strait, the San Juan Islands, and Haro Strait."
Martinez also said that the issue "has been finally determined and may not be re-litigated."
A three-judge appellate panel considered the merits of that 2012 ruling on Friday.
Pratik Shah, representing the Lummi, brought a large map of the fishing area in question and pointed to show the judges the "natural passageway" that the Lummi traditionally traveled from the San Juan Islands to Seattle.
"Simply because travelers are traversing in an area does not make it be a usual and accustomed fishing place, does it?" Judge Johnnie Rawlinson asked.
Shah said not always, but that evidence shows the Lummi did fish there.
The struggle for Judge Michael Hawkins was that Judge Rothstein had the issue "squarely before her" and decided it.
Shah argued that Rothstein's decision described the areas west of Lummi fishing grounds, but that the waters south and east are in dispute here. Shah also took issue with the court's definition of a strait. He said it conflicts with the common definition of it as "a narrow body of water between two land masses connecting two larger bodies of water."
Pointing to the map again, Shah said the area the S'Klallam accuse the Lummi of fishing should not be prohibited.
"If you apply the merits you don't have to remand this case," Shah said.
In excluding certain waters, the trial court got its directions mixed up, he added.
"San Juan Island, Haro Strait are designated Lummi fishing areas," Shah said. "If the Strait of Juan de Fuca is west of those waters, it cannot possible encompass the disputed area which is east of San Juan Island and Haro Strait."
Shah told the panel it was a simple decision to reverse and "give those waters to the Lummi."
Lauren Rasmussen, representing the S'Klallam Tribes, said the 9th Circuit was clear in saying the Lummi "may not fish in the Strait of Juan de Fuca."
Hawkins asked if any proceeding ever ruled whether Lummi travelling to and from usual and accustomed fishing areas gave them rights to fish the entire route.
Rasmussen replied: "Yes - it's been established to the contrary. Judge Bolt recognized that travel did not establish U & A."
Hawkins said he thought that there was evidence in the Bolt proceedings that the Lummi both traveled and fished in the disputed area.
Rasmussen said this was "not evidence that the court adopted."
Hawkins asked, if there was no current dispute, would the S'Klallam accept the Lummi could fish up in Rosario and Haro and travel down to the Admiralty Inlet to continue their fishing rights.
"Exactly," Rasmussen replied.
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