66 F.4th 766
9th Cir.2023Background
- The 1855 Treaty of Point Elliott reserved tribes the right to take fish “at usual and accustomed grounds and stations”; Judge Boldt’s 1974 United States v. Washington ("Final Decision I") adjudicated many tribes’ U&As and retained continuing jurisdiction to resolve later disputes.
- Finding of Fact 131 in Final Decision I (adopting Dr. Barbara Lane’s report) lists the Sauk-Suiattle Tribe’s U&As as the Sauk River, Cascade River, Suiattle River, and specified tributary creeks — it does not name the mainstem Skagit River.
- In early 2020 the Sauk tribe adopted a regulation allowing Coho salmon harvest in a stretch of the Skagit River mainstem; Upper Skagit invoked paragraph 25(a)(1) of Final Decision I to challenge conformity with Boldt’s decision.
- The district court granted summary judgment for Upper Skagit, concluding Boldt intentionally omitted the Skagit River from the Sauk tribe’s U&As; the Sauk tribe appealed.
- The Ninth Circuit applied its two-step framework for interpreting Final Decision I (text/context first; if ambiguous, examine the record before Boldt) and affirmed: Finding of Fact 131 unambiguously omits the Skagit River and Boldt’s reliance on the Lane Report and his inclusion of Skagit for other tribes supports an intentional omission.
Issues
| Issue | Plaintiff's Argument (Upper Skagit) | Defendant's Argument (Sauk) | Held |
|---|---|---|---|
| Whether the Skagit River is part of the Sauk tribe’s U&As under Finding of Fact 131 | FOF 131 omits Skagit; omission is intentional and unambiguous, so Sauk may not fish the Skagit mainstem | Boldt’s decision and record show Sauk historically used the Skagit, so the Skagit should be included | Court held Finding 131 unambiguously excludes the Skagit River; affirmed summary judgment for Upper Skagit |
| Whether listing tributaries implies inclusion of the mainstem Skagit | Tribes are listed precisely; Boldt included Skagit by name for other tribes, so omission here is intentional | Inclusion of tributaries suggests broader drainage use that should encompass Skagit mainstem | Court rejected inference-by-tributary; Boldt’s practice of naming rivers where intended shows omission was deliberate |
| Whether James Enick’s 1973 testimony creates ambiguity about Sauk use of the Skagit | Testimony that Sauk people lived “up and down the Skagit” implies customary fishing there | The testimony describes residence patterns and Sauk River fishing, not routine mainstem Skagit fishing | Court held Enick’s testimony did not demonstrate that Boldt intended to include the Skagit in Finding 131 |
| Whether path-of-travel, scattered statements, or Lane’s general language show customary use of the Skagit | Sauk River and Cascade River U&As imply travel via Skagit and occasional fishing on mainstem; Lane’s general statements suggest fisheries along drainage systems | Occasional, incidental, or relational use (marriage, travel to saltwater) does not establish customary U&As on mainstem; Final Decision I distinguishes headwaters from mainstem U&As | Court concluded such evidence was too general/episodic to overcome the clear text; no ambiguity shown |
Key Cases Cited
- United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (Final Decision I) (established Boldt framework for U&As and retained continuing jurisdiction)
- United States v. State of Wash., 459 F. Supp. 1020 (W.D. Wash. 1978) (Final Decision II) (exercise of continuing jurisdiction to determine tribes’ U&As)
- Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir. 1998) (discusses appellate jurisdiction and review principles for Boldt subproceedings)
- Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9th Cir. 2000) (interpretation of Boldt findings begins with text and context)
- United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000) (opinions are read in context; do not rigidly apply statutory canons to judicial decisions)
- Lummi Indian Tribe v. United States, 235 F.3d 443 (9th Cir. 2000) (omission of specific geographic term suggests intentional exclusion)
- Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020 (9th Cir. 2010) (courts may resolve competing inferences about Boldt’s intent using the record)
- Tulalip Tribes v. Suquamish Indian Tribe, 794 F.3d 1129 (9th Cir. 2015) (articulates two-step inquiry and burden on moving party in Boldt subproceedings)
- Upper Skagit Indian Tribe v. Suquamish Indian Tribe, 871 F.3d 844 (9th Cir. 2017) (examples of step-two evidence that may or may not overcome a plain textual reading)