928 F.3d 783
9th Cir.2019Background
- The Skokomish Tribe (descendants of the Twana) asserts "usual and accustomed" (U&A) fishing rights in the Satsop River under the continuing jurisdiction provisions of the Boldt Decision (United States v. Washington).
- Judge Boldt’s 1974 injunction defined the Skokomish U&A as "all the waterways draining into Hood Canal and the Canal itself." The injunction created Paragraph 25 procedures for invoking the court’s continuing jurisdiction and required pre-filing meet-and-confer disclosures.
- In a 1984 subproceeding the district court resolved which tribe held primary rights in Hood Canal, adopting findings based on Elmendorf, Waterman, and the Gibbs journal; that subproceeding did not adjudicate or change the boundaries of the Skokomish U&A and contained no explicit Satsop River determination.
- In 2015–2017 the Skokomish held a meet-and-confer (discussing a Thompson Report) and later filed a Request for Determination (RFD) seeking confirmation that the Skokomish U&A (and primary rights) included the entire Satsop River, asserting the 1984 subproceeding and Gibbs journal as basis.
- Respondents moved for summary judgment arguing Skokomish failed to comply with Paragraph 25 pre-filing requirements, failed to identify which ¶25(a) basis invoked, violated the Hood Canal Agreement, and sought U&A beyond the Boldt determination. The district court granted respondents’ summary judgment; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Skokomish invoked Boldt court’s continuing jurisdiction properly under ¶25(a) | Skokomish asserted jurisdiction generally (¶25(a)(1)–(7)) and argued flexibility was needed | Respondents: Skokomish failed to identify which ¶25(a) subsection they relied on; specificity required | Court held Skokomish failed to identify the specific ¶25(a) basis; general catch-all assertion insufficient |
| Whether Skokomish complied with Boldt pre-filing meet-and-confer requirements (¶25(b)) | Skokomish says they met and conferred and discussed the Thompson Report | Respondents: Skokomish did not disclose reliance on the 1984 subproceeding/Gibbs journal or that the claim was premised on an earlier adjudication | Court held Skokomish violated ¶25(b) because it failed to disclose the precise legal basis (1984 decision/Gibbs journal) at meet-and-confer |
| Whether the 1984 subproceeding already adjudicated Skokomish U&A rights in the Satsop River | Skokomish contended the 1984 decision (through adoption of Gibbs journal) effectively recognized Skokomish rights in the Satsop | Respondents: 1984 subproceeding only decided primary rights within Hood Canal and did not determine U&A boundaries or include Satsop | Court held 1984 subproceeding did not determine Skokomish U&A in the Satsop River; it addressed primary rights in Hood Canal only |
| Whether the district court could reach the merits despite procedural defects | Skokomish argued respondents waived strict pre-filing objections and the court could decide on merits | Respondents maintained pre-filing violations deprived the court of authority under Paragraph 25 procedures | Majority: pre-filing failure is a bar here and district court correctly dismissed on that procedural ground; concurrence/dissent would reach merits or treat procedures as waivable |
Key Cases Cited
- United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (Boldt Decision creating U&A determinations and continuing-jurisdiction procedures)
- Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979) (Supreme Court affirming key aspects of Boldt’s allocation of harvestable fish)
- United States v. State of Wash., 626 F. Supp. 1405 (W.D. Wash. 1984) (1984 subproceeding resolving primary rights in Hood Canal; did not define Skokomish U&A to include Satsop)
- Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir. 1998) (prior Ninth Circuit discussion of Paragraph 25 pre-filing compliance and waiver/management of subproceedings)
- Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13 (2017) (procedural rules may be mandatory claim-processing rules subject to waiver/forfeiture)