Tribes Take Spat Over Fishing Territory to Ninth Circuit

SEATTLE (CN) – Washington state’s Makah Tribe asked the Ninth Circuit on Wednesday to reduce a court-approved expansion of the Quileute and Quinault tribes’ fishing territory, arguing the new boundaries have reduced the Makah’s catch.

All three tribes live on the Olympic Peninsula in the western part of the state.

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 fishing ground of the Quileute and Quinault, claiming the tribes were fishing beyond their boundaries.

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.

At a hearing before a three-judge appellate panel on Wednesday, the Makah’s attorney Mark Slonim, with Ziontz, Chestnut, Varnell, Berley & Slonim in Seattle, said Judge Martinez improperly extended the Quileute and Quinault territory based on traditional whaling and sealing evidence, not fishing.

Slonim argued the tribes pursued whales and seals much further out to sea than fish, and Martinez wrongly determined all the waters were used for fishing.

Circuit Judge M. Margaret McKeown said the lower court used the tribes’ meaning for “fish.”

“Fish, when translated, means not just fish but food,” McKeown said, and told Slonim there was no separate provision for sea mammal hunting boundaries and fishing boundaries.

“That can’t be the meaning in the treaty because it could be interpreted as meaning deer and elk,” Slonim countered, referencing the 1855 treaty between the United States and the Makah.

He also argued that the new court-approved boundaries for Quileute and Quinault fishing added up to 200 additional miles.

Lauren King, with Foster Pepper in Seattle and representing the Quileute and Quinault, told the panel the expanded fishing territory of 30 to 60 miles off the coast was based on “extensive evidence” about the tribes’ usual and accustomed waters.

“The trial court correctly held that fishers didn’t track exact boundary lines from the coast,” she said, and asked the panel to uphold the Quileute and Quinault new fishing boundaries.

Circuit Judge Michael Hawkins and U.S. District Judge Elizabeth Foote, sitting by designation from the Western District of Louisiana, rounded out the panel. They took the matter under submission and did not indicate when they would rule.

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