Lwr Elwha Klallam Indian Tribe v. Lummi Nation
2014 U.S. App. LEXIS 15967
| 9th Cir. | 2014Background
- This appeal concerns fishing rights among Klallam tribes and the Lummi Nation under the Point Elliott Treaty U&A rights.
- Boldt Decree (1974) defined U&A broadly to include historic fishing locations across Northern Puget Sound.
- Subproceedings 89-2 and 11-02 sought boundary determinations for U&A west of Whidbey Island and related areas.
- Judge Rothstein adopted Judge Coyle’s view that Strait of Juan de Fuca, Hood Canal, and Admiralty Inlet were outside Lummi U&A.
- The panel held the issue of the western boundary west of Whidbey Island had not been decided either explicitly or by necessary implication, so law-of-the-case did not control.
- Court reverses district court summary judgment and remands for further proceedings consistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether waters immediately west of northern Whidbey Island are in Lummi U&A. | Klallam: those waters are outside Lummi U&A based on Rothstein/Coyle. | Lummi: those waters may be within U&A per Boldt/earlier analyses. | Not decided; issue not explicit/necessary implied in prior decisions. |
| Whether the law-of-the-case doctrine governs this boundary question. | Law of the case controls because prior decisions resolved boundary. | No explicit/necessary implication established the boundary. | District court erred; law-of-the-case not controlling at this boundary. |
| What standard of review applies to law-of-the-case conclusions in this context. | Abuse-of-discretion standard applies for law-of-the-case determinations. | Threshold question is legal; de novo review appropriate. | De novo review governs the threshold question of law-of-the-case applicability. |
Key Cases Cited
- Lummi Indian Tribe v. United States, 235 F.3d 443 (9th Cir. 2000) (law-of-the-case, finality, and boundaries of U&A discussed)
- United States v. Washington (Boldt Decree), 384 F.Supp. 312 (W.D. Wash. 1974) (definition of U&A; travel as tolling not enough to include area)
- United Steelworkers of Am. v. Ret. Income Plan For Hourly-Rated Employees of ASARCO, Inc., 512 F.3d 555 (9th Cir. 2008) (law-of-the-case applies only when issue actually decided)