9th Cir.;
15-35540

The court of appeals affirmed a district court judgment. The court held that the “usual and accustomed” fishing grounds and stations of the Suquamish Indian Tribe, as determined by Judge Boldt in 1975, do not include certain waters contested by the upper Skagit Tribe.

In 1975, Judge Boldt issued a decision delineating the “usual and accustomed” (U&A) fishing grounds and stations of the Suquamish Indian Tribe. Neighboring tribes later filed actions challenging the Suquamish’s U&A determinations. In 2010, in one of those proceedings, the Ninth Circuit determined that “Judge Boldt intended something different than the plain text of the Suquamish U & A finding.” In 2014, the Upper Skagit Indian Tribe filed a request for determination that the Suquamish U&A determinations did not include Chuckanut Bay, Samish Bay, and a portion of Padilla Bay where the Upper Skagit had its own court-approved U&A determinations.

On cross-motions for summary judgment, the district court concluded that Judge Boldt did not intend to include the contested waters in the Suquamish’s U&A determinations and, accordingly, granted summary judgment to the Upper Skagit.

The court of appeals affirmed, holding that the record failed to support a finding that the contested waters were intended to be included in the Suquamish U&A determinations. Applying the two-step Muckleshoot analytical framework, the court found, at step one, as previously determined, that Judge Boldt intended something other than the text’s plain meaning. The court accordingly proceeded to step two, at which the moving party bore “the burden to show that there was no evidence before Judge Boldt that the Suquamish fished…or traveled through the contested areas.” The Upper Skagit met this burden. Reviewing the record, the court found no evidence before Judge Boldt that the Suquamish fished or traveled through the contested waters. Rather, the evidence pertained to fisheries either on the opposite side of the Puget Sound or considerably south of the contested waters. Further, although not determinative, Judge Boldt’s failure to name the contested waters in the Suquamish’s U&A determinations supported the conclusion that he did not intend to include them. The Suquamish’s arguments to the contrary were unavailing.