88 F. Supp. 3d 1203
D. Wash.2015Background
- Makah filed a Request for Determination (Dec. 4, 2009) asking the court to fix the western boundaries of the Quileute and Quinault Pacific Ocean usual and accustomed (U&A) fishing grounds, asserting those boundaries lie ~5–10 miles offshore while Makah’s adjudicated U&A extends ~40 miles offshore.
- Federal agencies (NOAA/NMFS) previously promulgated interim western boundaries for tribal ocean fishing areas for regulatory management (halibut/salmon/whiting), while expressly reserving that courts may revise boundaries.
- Makah litigated halibut allocation matters (Mosbacher), leading to consolidation with the U.S. v. Washington proceedings; the court confirmed Makah halibut rights but did not adjudicate Quileute or Quinault U&As there.
- Tribes historically negotiated intertribal management agreements (blackcod, etc.) that included non-prejudice clauses preserving U&A claims; negotiations continued into the 2000s without judicial resolution of Quileute/Quinault western boundaries.
- Dispute culminated after Quileute/Quinault announced intent to enter the Pacific whiting fishery (2008); NMFS adopted interim tribal set-asides for whiting, and Makah filed this Paragraph 25(a)(6) subproceeding to obtain judicial determination.
- Court considered motions on equitable defenses (laches, judicial estoppel, acquiescence) and a motion to define burden/standard of proof; court granted Makah partial summary judgment rejecting those equitable defenses and deferred precise standard-of-proof determination to trial.
Issues
| Issue | Makah's Argument | Quileute/Quinault's Argument | Held |
|---|---|---|---|
| Availability of equitable defenses (generally) | Equitable defenses should not bar U&A adjudications under U.S. v. Washington because allowing them would encourage prescriptive expansion and undermine Paragraph 25 process | Equitable doctrines (laches, estoppel, acquiescence) can apply; recent authority (Sherrill, Apache, later decisions) undermines prior rule barring defenses | Court declined to adopt a categorical bar but held equitable defenses do not apply here in the typical fashion and granted partial summary judgment for Makah—Respondents’ equitable defenses fail on the merits |
| Judicial estoppel | Not applicable — Makah’s prior statements supporting regulatory boundaries were not inconsistent with seeking a de novo judicial U&A determination | Makah previously supported NMFS boundaries or represented support for other tribes’ U&As; should be estopped from asserting contrary positions now | Court found no clear inconsistency, no judicial adoption of an inconsistent position, and no unfair advantage; judicial estoppel fails |
| Laches and Acquiescence | Makah’s delay was reasonable because it sought negotiated resolution; it preserved right to adjudicate and did not sleep on rights | Makah waited decades to challenge, prejudicing defendants via reliance and changed expectations; laches/acquiescence should bar Makah’s claim | Court found no unreasonable delay or prejudice; Makah pursued negotiations and reserved rights — laches and acquiescence fail |
| Burden and standard of proof | Makah argued burden should rest with the tribes whose U&A is at issue and standard should be the usual civil standard (preponderance), possibly recognizing relaxed evidentiary approach | Quileute/Quinault contended Makah (petitioner) bears burden and, alternatively, that a relaxed or APA/arbitrary-and-capricious standard should apply | Court held burden rests with the tribes asserting the U&A (Quileute/Quinault here). Court rejected applying APA review; declined to fix the precise standard of proof now and deferred that question to oral argument at trial (but indicated preponderance likely applies, possibly with relaxed evidentiary expectations) |
Key Cases Cited
- United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (Final Decision #1 establishing Paragraph 25 U&A adjudication framework)
- New Hampshire v. Maine, 532 U.S. 742 (U.S. 2001) (judicial estoppel factors and analysis)
- City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (U.S. 2005) (laches and equity bar to stale tribal land claims in extraordinary circumstances)
- Danjaq LLC v. Sony Corp., 263 F.3d 942 (9th Cir. 2001) (definition of laches as equitable defense)
- Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 621 F.3d 981 (9th Cir. 2010) (elements of laches and acquiescence in Ninth Circuit)
- Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49 (U.S. 2005) (default rule on allocation of burden of proof and exceptions)
- Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843 (U.S. 2014) (burden-of-proof as substantive issue; declaratory-judgment allocation of burden principles)
- United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000) (procedural history and treatment of earlier district rulings on U&A issues)