UNITED STATES оf America, Plaintiff, and Lower Elwha Klallam Indian Tribe; Jamestown S‘Klallam Tribe; Port Gamble S‘Klallam Tribe, Petitioners-Appellees, v. LUMMI NATION, Respondent-Appellant, and State of Washington, Defendant, Swinomish Indian Tribal Community; Suquamish Tribe; Makah Indian Tribe; Stillaguamish Tribe; Upper Skagit Indian Tribe; Nisqually Indian Tribe; Tulalip Tribes; Squaxin Island Tribe, Real-Parties-in-Interest.
No. 15-35661
United States Court of Appeals, Ninth Circuit
December 1, 2017
Argued and Submitted August 30, 2017 Seattle, Washington
Finally, we see no reason to depart from the general rule that the contractual right to compel arbitration “may not be invokеd by one who is not a party to the agreement and does not otherwise possess the right to compel arbitration.” Britton v. Co-op Banking Grp., 4 F.3d 742, 744 (9th Cir. 1993). Dongwon argues that the state law exceptions to this general rule—equitable estoppel, agency, and alter ego—must be construed in Dongwоn‘s favor given the federal policy in favor of arbitration. But the “public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement.” Comedy Club, Inc. v. Improv W. Assocs., 553 F.3d 1277, 1287 (9th Cir. 2009) (quoting Buckner v. Tamarin, 98 Cal.App.4th 140, 119 Cal.Rptr.2d 489, 490 (2002)). That is because the federal policy applies to “the scope of arbitrable issues” and “is inapposite when the question is whether a particular party is bound by the arbitration agreement.” Norcia v. Samsung Telecomm. Am., LLC, 845 F.3d 1279, 1291 (9th Cir. 2017) (internal quotation marks and citation omitted) (affirming denial of non-signatory‘s motion to compel arbitration); accord Rajagopalan v. NoteWorld, LLC, 718 F.3d 844, 847 (9th Cir. 2013) (same).
Accordingly, we affirm the district court‘s denial of Dongwon‘s motion to compel arbitration.
Costs shall be taxed against Dongwon.
AFFIRMED.
Stephen H. Suagee (argued) and Samuel D. Hough, Office of General Counsel, Lower Elwha Klallam Tribe, Port Angeles, Washington, for Petitioner-Appellee Lower Elwha Klallam Tribe.
Lauren Rasmussen (argued), Law Officеs of Lauren P. Rasmussen, Seattle, Washington, for Petitioners-Appellees Jamestown S‘Klallam Tribe and Port Gamble S‘Klallam Tribe.
Mason D. Morisset and Rebecca JCH Jackson, Morisset Schlosser Jozwiak & Somerville, Seattle, Washington, for Real-Party-in-Interest Tulalip Tribes.
Howard G. Arnett and John W. Ogan, Karnopp Petersen, Bend, Oregon; James Rittenhouse Bellis, Suquamish Tribe, Suquamish, Washington; for Real-Party-in-Interest Suquamish Indian Tribe.
Before: MICHAEL DALY HAWKINS and M. MARGARET McKEOWN, Circuit Judges, and ELIZABETH E. FOOTE,** District Judge.
McKEOWN, Circuit Judge:
This appeal asks whether the Treaty of Point Elliott (the “Treaty“) reserves to the Lummi Nation (the “Lummi“) the right to fish in the waters west of Whidbey Island, Washington. We previously concluded that the Treaty secures the Lummi‘s right to fish in Admiralty Inlet because the Lummi would have used the Inlet as a passage to travel from its home in the San Juan Islands to present-day Seattle. The same result holds here because the waters at issue are situated directly between the San Juan Islands and Admiralty Inlet and also would have served as a passage to Seattle. We reverse the district court‘s judgment to the contrary.
Background
The 1855 Treaty of Point Elliott secures the Lummi‘s “right of taking fish at usual and accustomed grounds and stations” (“U&A“). Treaty of Point Elliott, art. V, Jan. 22, 1855,
Judge Boldt defined a U&A as “every fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the then usual habitat of the tribe, and whethеr or not other tribes then also fished in the same waters.” Decision I, 384 F.Supp. at 332. Importantly, a U&A cannot be established by “occasional and incidental trolling” in marine waters “used as thoroughfares for travel.” Id. at 353. As to the Lummi, Judge Boldt provided some general background on the tribe‘s fishing and techniques in Finding of Fact 45, and then made a U&A finding in Finding of Fact 46:
45. Prior to the Trеaty of Point Elliott, the Lummi, Semiahmoo and Samish Indians had been engaged in trade in salmon, halibut and shellfish both with other Indians and with non-Indians. This trade continued after the treaty. At the time of the treaty they maintained prosperous communities by virtue of their ownership of lucrative saltwater fisheries. The single most valuable fish resource was undoubtedly the sockeye, which the Lummis were able to intercept in the Straits on the annual migration of the sockeye from the ocean to the Fraser River. Lummi Indians developed a highly efficient technique, known as reef netting, for taking large quantities of salmon in salt wаter. Aboriginal Indian ‘reef netting’ differs from present methods and techniques described by the same term. The Lummis had reef net sites on Orcas Island, San Juan Island, Lummi Island and Fidalgo Island, and near Point Roberts and Sandy Point. When nature did not provide optimum reef conditions the Indians artificially created them. Reef netting was one of the two most important economic activities engaged in by these Indians, the other being the sale of dog fish oil. These Indians also took spring, silver and humpback salmon and steelhead by gill nets and harpoons near the mouth of the Nooksack River, and steelhead by harpоons and basketry traps on Whatcom Creek. They trolled the waters of the San Juan Islands for various species of salmon.
46. In addition to the reef net locations listed above, the usual and accustomed fishing places of the Lummi Indians at
treaty times included the marine areas of Northern Pugеt Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay. Freshwater fisheries included the river drainage systems, especially the Nooksack, emptying into the bays from Boundary Bay south to Fidalgo Bay. Id. at 360-61 (emphases added) (citations omitted).
These findings formed the foundation of our earlier adjudicаtion of parts of the Lummi‘s U&A. Notably, we held that Admiralty Inlet was included in the Lummi‘s U&A but the Strait of Juan de Fuca was excluded. See United States v. Lummi Indian Tribe, 235 F.3d 443, 445, 451-52 (9th Cir. 2000) (Lummi I). Admiralty Inlet is due south of the waters contested here—the waters west of Whidbey Island. The Strait of Juan de Fuca lies further west of both of those waters.
This dispute began in 2011. The Lower Elwha Klallam Tribe, the Jamestown S‘Klallam Tribe, аnd the Port Gamble S‘Klallam Tribe (collectively, the “Lower Elwha“) invoked the district court‘s continuing jurisdiction under Decision I to determine whether the Lummi has the right to fish in the waters west of Whidbey Island. The district court granted summary judgment to the Lower Elwha, reasoning that Lummi I had determined that the waters west of Whidbey Island are excluded from the Lummi‘s U&A.
On appeal, we disagreed with the district court‘s conclusion that the law of the case doctrine applied. United States v. Lummi Nation, 763 F.3d 1180, 1185-88 (9th Cir. 2014) (Lummi II). Examining the decision in Lummi I, we noted that while there were some indications that the contested waters were excluded from the Lummi‘s U&A, there were strong indications pointing the оther way too. Id. at 1186-87. In particular, Lummi I‘s geography-based reasoning suggested that “the waters immediately west of northern Whidbey Island are a part of the Lummi‘s U & A.” Id. at 1187 (emphasis in original). Thus, we concluded that Lummi I had not yet decided the issue explicitly or by “necessary implication.” Id. at 1187-88. In other words, the law of the case was not the operative standard. Instead, we rеmanded for the district court to apply the usual U&A procedures. Id.
On remand, the district court reached the same conclusion as it did before—that the disputed waters are not included in the Lummi‘s U&A—and again granted summary judgment to the Lower Elwha. The court explained that “neither logic nor linguistics would compel the conclusion that the waters to the west of northern Whidbey Island were intended by Judge Boldt to be included in the Lummi U&A.”
The Lummi appealed. Reviewing de novo, we reverse. See Tulalip Tribes v. Suquamish Indian Tribe, 794 F.3d 1129, 1133 (9th Cir. 2015).
Analysis
This is another chapter in the “ongoing saga” arising from Judge Boldt‘s original decision. See Makah Indian Tribe v. Quileute Indian Tribe, 873 F.3d 1157, 1160 (9th Cir. 2017). In Finding of Fact 46, Judge Boldt stated that “the usual and accustomed fishing places of the Lummi Indians at treaty times included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle.” Decision I, 384 F.Supp. at 360. To determine whether the waters west of Whidbey Island are included in the Lummi‘s U&A, we follow a two-step procedure. At step one, we decidе whether a particular finding of fact is ambiguous. See Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020, 1023 (9th Cir. 2010). All parties agree that Finding of
We also highlight that the district court improperly imposed a heightened standard in holding that logic or linguistics need to “compel the conclusion” that contested waters be included in a U&A. (Emphasis added). We do not countenance such a standard because it imposes a nearly insurmountable burden on tribes in view of Decision I‘s decades-long lookback approach. The better approach is to construe Judge Boldt‘s language in light of the available evidence.
Our analysis harkens back to Lummi I, where wе examined whether Admiralty Inlet is part of the Lummi‘s U&A. We began by noting that Judge Boldt‘s Decision I does not mention Admiralty Inlet at all, so “there [we]re no linguistic clues to compare.” 235 F.3d at 452. But we reasoned that, as a matter of geography, Admiralty Inlet fell within the “marine areas of Northern Puget Sound from the Fraser River south to the present environs of Sеattle.” Id. Because “Admiralty Inlet would likely be a passage through which the Lummi would have traveled from the San Juan Islands in the north to the ‘present environs of Seattle,‘” the disputed area was deemed part of the Lummi‘s U&A. Id.
This case is almost identical. As a linguistic matter, in Decision I Judge Boldt does not reference Whidbey Island with respect to the Lummi‘s or any other tribe‘s U&A. 384 F.Supp. at 348-82.1 The only mention of “Whidbey Island” in Decision I comes in a section labeled “DEPARTMENT OF GAME POLICIES AND PRACTICES” and says that “The Game Department permits fishing for steelhead in all marine areas within its regulatory jurisdiction. Saltwater steelhead fisheries are insignificant. Most are located on Whidbey Island at Bush Point and Lagoon Point.” Id. at 393, 398 (emphasis added). That reference does not indicate whether the waters west of Whidbey Island are included in “the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle.” Id. at 360. Like Admiralty Inlet in Lummi I, the disputed area here is “just as likely” to be included in “Northern Puget Sound” as it is to be excluded. 235 F.3d at 452.
Turning to the geographic indicators, as we did in Lummi I, there is no doubt that the waters west of Whidbey Island “would likely be a passage through which the Lummi would have traveled from the San Juan Islands in the north to the ‘present environs of Seattle.‘” Id. (quoting Decision I, 384 F.Supp. at 360). The nautical path that we traced in Lummi I from the San Juan Islands to Seattle cuts right
Importantly, expert anthropologist Dr. Barbara Lane tied travel in this corridor to fishing: “The deeper saltwater areas, the Sound, the straits, and the open sea, served as public thoroughfares, and as such, were used as fishing areas by anyone travelling [sic] through such waters.” Tulalip Tribes, 794 F.3d at 1135. Dr. Lane also reported that “Lummi fishermen were accustomed . . . to visit fisheries as distant as” the endpoints of the path we carved in Lummi I, and “utilized” other fisheries in between. (Emphasis added). Judge Boldt lauded Dr. Lane‘s work as “exceptionally well researched and reported“; Dr. Lane testified extensively at trial and Judge Boldt relied heavily on her report in Finding of Fact 46 and throughout Decision I. 384 F.Supp. at 350.
The Lower Elwha‘s most persuasive argument is that general evidence of travel cannot by itself establish U&As. Judge Boldt defined “usual and accustomed grounds and stations” as “every fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the then usual habitat of the tribe, and whether or not other tribes then also fishеd in the same waters.” Id. at 332. He also specified what was not included: “Marine waters were also used as thoroughfares for travel by Indians who trolled en route. Such occasional and incidental trolling was not considered to make the marine waters traveled thereon the usual and accustomed fishing grounds of the transiting Indians.” Id. at 353 (citations omitted). In the Lower Elwha‘s view, Judge Boldt‘s statements stand for the principle that transit through an area is insufficient for a U&A finding.
Although the Lower Elwha‘s general statement is accurate as far as it goes, in Lummi II, we already addressed and rejected this argument in the speсific context of the Lummi‘s U&A. We held that “the Lummi‘s use of ‘the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle’ was more than mere ‘occasional and incidental trolling.‘” Lummi II, 763 F.3d at 1187. We explained further: “If to ‘proceed through Admiralty Inlet’ rendered Admiralty Inlet a рart of the Lummi U & A, then to proceed from the southern portions of the San Juan Islands to Admiralty Inlet would have the same effect: to render the path a part of the Lummi U & A, just like Admiralty Inlet.” Id. That explanation covers our exact situation and fits within our long-accepted framework, which requires looking at thе evidence “before Judge Boldt that the [tribe] fished or traveled in the . . . contested waters.” Tulalip Tribes, 794 F.3d at 1135 (emphasis added) (citing Upper Skagit, 590 F.3d at 1023).2
REVERSED AND REMANDED.