Lower Elwha Band of S'Klallams v. Lummi Indian Tribe

No. 98-35964 (235 F.3d 443) (9th Cir. December 13, 2000)

ELR Digest

The court holds that a 1978 case concerning Native American fishing rights in the Puget Sound intended for the Lummi Indian Tribe's usual and accustomed fishing areas to include Admiralty Inlet but not the Strait of Juan de Fuca and the mouth of the Hood Canal. In the 1978 action, the court determined that the Lummi Indian Tribe was entitled to fish in the marine areas of the "northern Puget Sound from the Fraser River south to the present environs of Seattle." In the instant action, four tribes alleged that the Lummi Indian Tribe was fishing outside its adjudicated area. A district court granted summary judgment to the four tribes based on its determination that the 1978 decision did not intend for the Admiralty Inlet, Strait of Juan de Fuca, and the mouth of the Hood Canal to be included in the Lummi Indian Tribe's usual and accustomed fishing areas.

The court first holds that district court judgment being appealed was not a final judgment that the Lummi Indian Tribe may no longer appeal. Although the district court disposition of the summary judgment motions left no issues to be resolved, the Lummi Indian Tribe amended their pleadings to assert a cross-request for a determination. Both parties then continued to actively litigate. No final judgment was entered, and no separate judgment was entered. The court then holds that the district court did not improperly consider an expert's latter-day testimony as evidence of the 1978 court's intent. The district court properly relied on evidence that was before the 1978 court. The court next holds that with respect to the Strait of Juan de Fuca and the mouth of the Hood Canal, the district court properly relied on evidence that was put before the judge in the 1978 action. Moreover, evidence demonstrates that the 1978 decision did not intend for these two areas to be included in the northern Puget Sound. The court then holds that with respect to Admiralty Inlet, there is no indication in the 1978 action that the court decision recognized the inlet as a region separate from the northern Puget Sound. Nevertheless, based on the geography of the area, the 1978 decision must have intended for Admiralty Inlet to be included within the northern Puget Sound.

The full text of this opinion is available from ELR (14 pp., ELR Order No. L-299).

Counsel for Plaintiffs
Kathryn J. Nelson
Eisenhower & Carlson
1201 Pacific Ave., Ste. 1200, Tacoma WA 98402
(253) 572-4500

Counsel for Defendant
Harry L. Johnsen
Raas, Johnsen & Stuen
1503 E St., Billingham WA 98227
(360) 647-0234

[31 ELR 20306]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]