[00:00:17] Speaker 04:
Whenever you're ready, counsel.

[00:00:27] Speaker 05:
May I please the court, Your Honours.

[00:00:29] Speaker 05:
Jack Feyender.

[00:00:30] Speaker 05:
I serve as the general counsel for the Soxoatl Indian tribe.

[00:00:34] Speaker 05:
I appreciate the court having given us 20 minutes per side.

[00:00:41] Speaker 05:
But that's still not enough time to discuss United States versus Washington.

[00:00:47] Speaker 05:
That has been ongoing for all these years.

[00:00:52] Speaker 05:
I would like to try to cover as much as I can in about 15 minutes and perhaps save five both for rebuttal

[00:01:01] Speaker 05:
And because I know during the 15 minutes I'm not going to be able to say everything I want to say or that needs to be said, and I'll think of it and remember it during that time between argument and rebuttal.

[00:01:17] Speaker 05:
I'd like to start with some background, which I think is the strongest argument in favor of the Soxoatl Indian tribe, at least as to its right to harvest in marine waters, which was denied by the district court.

[00:01:42] Speaker 05:
So on September 18th, 1970,

[00:01:47] Speaker 05:
That's when the United States Attorney for the Western District of Washington, then Stan Pitkin, filed the initial complaint invoking the court's jurisdiction over this case.

[00:02:03] Speaker 05:
I can't provide you with it because there was no electronic filing in 1970.

[00:02:09] Speaker 05:
It's housed in the archives of the district court.

[00:02:13] Speaker 05:
I had a copy once, but I can tell you that

[00:02:16] Speaker 05:
the parameters of the complaint were seeking a declaratory judgment that treaties with the tribes in Western Washington state provided them a right to harvest anagromous fish.

[00:02:35] Speaker 05:
And sought a declaratory judgment to that effect and sought a permanent injunction in joining the state of Washington from interfering with that right.

[00:02:46] Speaker 05:
But you don't have to go to the complaint because if you go to the very first paragraph of Judge Bolt's decision at 384 Fedsup 327, it provides that the United States filed the complaint

[00:03:11] Speaker 05:
initiating this action against the State of Washington Department of Fisheries and Department of Game.

[00:03:21] Speaker 05:
To quote Judge Bolt, by statute, the Department of Fisheries is charged with regulatory authority.

[00:03:27] Speaker 03:
Can I help you move along?

[00:03:29] Speaker 03:
Because for me, the issue is, what's the meaning as it applies to this case of Paragraph 25A6?

[00:03:37] Speaker 05:
That is, look,

[00:03:40] Speaker 05:
Can I address that later?

[00:03:42] Speaker 05:
Because I was just about to tell you why the tribe should prevail in this case.

[00:03:47] Speaker 03:
I don't mean to rearrange your argument, yeah.

[00:03:50] Speaker 03:
But at some point, I'd like to know your argument with respect to that paragraph.

[00:03:54] Speaker 03:
I will.

[00:03:55] Speaker 05:
Well, according to Judge Boll, in the first paragraph, the State Department of Fisheries exercised regulatory authority over anadromous salmon.

[00:04:06] Speaker 05:
And the Department of Game

[00:04:09] Speaker 05:
regulated anadromous steelhead trout, okay?

[00:04:14] Speaker 05:
That was the scope of the complaint.

[00:04:17] Speaker 05:
Anadromous fish, which are salmon and steelhead, and incidentally bullhead trout.

[00:04:24] Speaker 05:
So, the finding of fact of the tribe's customary fishing grounds in 1974 listed in Finding a Fact 131,

[00:04:38] Speaker 05:
is a non-exclusive list where Judge Bolt concluded that the Soxoatl tribe harvested anadromous fish.

[00:04:46] Speaker 01:
Well, I mean, the record talks specifically about the Soxoatl tribe had traveled down to the saltwater to procure marine life unavailable in their own territory.

[00:04:58] Speaker 01:
So my question is, then nothing was said in terms of an allocation.

[00:05:04] Speaker 01:
And in later years,

[00:05:07] Speaker 01:
the Stillaguamish tribe was able to bring claims in a sub proceeding with kind of a similar ambiguous statement.

[00:05:17] Speaker 01:
So what I would appreciate understanding from you is that reference and acknowledgement that the tribe, obviously given where it's located, needed to travel down to the ocean in order to harvest

[00:05:36] Speaker 01:
does that have any impact other than an acknowledgement and then leaving the question open?

[00:05:41] Speaker 01:
Or is there a negative inference that by making the statement, then not specifically giving an allocation that there is no customary use there?

[00:05:59] Speaker 05:
Okay, the scope of the case at that time

[00:06:03] Speaker 05:
was to determine rights to anadromous fish and where those were harvested.

[00:06:10] Speaker 05:
That was the scope of the case, okay?

[00:06:13] Speaker 05:
And it was not until after 1989,

[00:06:21] Speaker 05:
when the United States initiated a sub-proceeding within United States versus Washington to determine the rights to other marine life, specifically shellfish, which were previously outside the scope of the original proceeding.

[00:06:43] Speaker 05:
So in ER 61, Barbara Lane's testimony

[00:06:50] Speaker 05:
was that, yes, the tribe harvested salmon and steelhead in its area, but they traveled to the marine waters, particularly to harvest shellfish.

[00:07:03] Speaker 05:
A very vague statement.

[00:07:07] Speaker 05:
Judge Bolt, in finding a fact 132, after finding in 131 the tribe's right where it could harvest a non-exclusive list of anadromous fishing sites,

[00:07:19] Speaker 05:
put in 132 that an even broader interpretation that the tribe traveled to the salt water to harvest marine life.

[00:07:28] Speaker 05:
He didn't just say shellfish, okay?

[00:07:30] Speaker 05:
But at the time in 1974, that was just Ipsy Dixit because that was outside the scope of the case, okay?

[00:07:38] Speaker 01:
So I mean, the bottom line that you're suggesting is that without a clear allocation, even though there's this mention that at this point,

[00:07:51] Speaker 01:
those marine claims still prevail and in a broad sense, marine life, not limited to any kind of either fish or shellfish, right?

[00:08:04] Speaker 01:
Is that your claim?

[00:08:07] Speaker 05:
Let me address it by referring to the answering brief of the Swinomish tribe at page 33, which cites a sub proceeding from 1991

[00:08:21] Speaker 05:
where the Makah, Quileute, and Quinault tribes sought within the case to establish customary fishing grounds out in the Pacific Ocean.

[00:08:33] Speaker 05:
That was denied back then because the case was limited to waters of the state of Washington.

[00:08:41] Speaker 05:
and they were claiming customary fishing areas that were like 40 miles out, but at the time there was a three mile limit that coastal waters were subject to.

[00:08:54] Speaker 05:
So that was denied, but you can see from page 33 of Swinomish's answering brief that later,

[00:09:03] Speaker 05:
when Congress extended the three mile limit to 200 mile limits, those tribes were able to present their claims to those waters 40 plus miles out.

[00:09:18] Speaker 05:
And the argument they prevailed on was that our rights could not have been determined by Judge Bold in the initial decision

[00:09:31] Speaker 05:
because waters more than three miles out were beyond the jurisdiction then of the court.

[00:09:41] Speaker 05:
Once that changed, they could assert those rights, as long as they were within 200 miles.

[00:09:48] Speaker 05:
By analogy, the same thing here.

[00:09:51] Speaker 05:
The complaint and Judge Bolt's decision at the very end says, we're dealing with an anagamous fish.

[00:09:58] Speaker 05:
It was not until 1989

[00:10:00] Speaker 05:
when there was a separate sub-proceeding over which Judge Edward Rafiti from the Northern District of California was assigned, determined that a fish is a fish, and shellfish are fish, which expanded the continuing jurisdiction of the court, and that case was allowed to proceed.

[00:10:21] Speaker 05:
Why that's important is because

[00:10:26] Speaker 05:
other marine life, which were originally outside the scope, and it's acknowledged ambiguously that the tribe traveled there to do that.

[00:10:36] Speaker 05:
It includes clams, crabs, oysters, scallops, anemones, all these other species.

[00:10:45] Speaker 05:
That could not have been determined in 1974.

[00:10:49] Speaker 05:
It was not.

[00:10:51] Speaker 05:
Only anadromous fish.

[00:10:52] Speaker 05:
And that's what the tribe is trying to assert now.

[00:10:55] Speaker 05:
And it's very important because this is not 1974.

[00:11:00] Speaker 05:
2026 when three species of anadromous fish are on the threatened species list.

[00:11:05] Speaker 03:
But let me ask you this question.

[00:11:07] Speaker 03:
With respect to your tribes seeking rights in the salt water, are you seeking only shellfish or are you seeking also anadromous fish in the salt water?

[00:11:18] Speaker 05:
Well, after Judge Rafiti ruled that it doesn't make a difference if fish is a fish.

[00:11:23] Speaker 03:
No, I'm asking you what your tribe is seeking here in this litigation.

[00:11:27] Speaker 05:
All fish.

[00:11:28] Speaker 03:
Including fish that swim.

[00:11:31] Speaker 05:
Yeah, anything that swims.

[00:11:32] Speaker 03:
Okay.

[00:11:33] Speaker 01:
But I also, I know we have somewhat limited time, but of course the briefing is quite extensive here with Amicus and multiple tribes weighing in.

[00:11:44] Speaker 01:
So I want to turn your attention to the Baker River.

[00:11:47] Speaker 05:
Yeah.

[00:11:48] Speaker 01:
And just understand, I want to talk about the present and then I want to go back in history.

[00:11:55] Speaker 01:
So what tribes are currently harvesting from the Baker River?

[00:11:59] Speaker 01:
And is that under a settlement agreement or a management agreement with the Federal Energy Regulatory Commission?

[00:12:10] Speaker 05:
My understanding, and Mr. Hawkins who's here for the upper Skagit tribe may be able to answer that better, but my understanding that the Swinomish tribe and the upper Skagit tribe harvest salmon.

[00:12:27] Speaker 05:
in the Baker River, my understanding is that that was by agreement, because according to Judge Bolt, customary fishing grounds can be established by agreement or stipulation or by trial or hearing.

[00:12:42] Speaker 05:
That's my understanding.

[00:12:44] Speaker 05:
But as to the Baker, where the district court made an error in interpreting the tribe's request for

[00:12:57] Speaker 05:
determination of additional fishing grounds, including the Baker, the district court said, well, the Soxo-Atl tribes' rights have already been adjudicated, and in your request for determination, the supporting facts that you assert are a report by

[00:13:26] Speaker 05:
Barbara Lane, PhD, the queen anthropologist of the both case.

[00:13:33] Speaker 05:
And he said, that's not new evidence.

[00:13:36] Speaker 05:
Well, if you look at excerpt of record 12, that was an error by the district court because the law of the case, according to many statements,

[00:13:56] Speaker 05:
in Judge Bolt's decision regarding claiming additional fishing grounds.

[00:14:06] Speaker 04:
You don't have to... Are you splitting your time with other counsel or you're claiming the full 20 minutes?

[00:14:14] Speaker 04:
Yes.

[00:14:14] Speaker 03:
Okay.

[00:14:15] Speaker 03:
I misunderstood that.

[00:14:16] Speaker 03:
Okay.

[00:14:19] Speaker 05:
And I just lost 30 seconds there.

[00:14:24] Speaker 05:
But if you look at excerpt of record number 12, the district court erroneously concluded like, well, Judge Bolt already considered the testimony of Barbara Lane.

[00:14:40] Speaker 05:
But what was referred to in the tribe's request for information was a report prepared by Barbara Lane specific to the Baker River, which was not prepared until 1980.

[00:14:53] Speaker 05:
Right, right.

[00:14:54] Speaker 05:
It could not have been considered by Judge Bolt in 1974.

[00:15:00] Speaker 01:
Has any court actually considered this 1980 Dr. Lane and her husband report to this date?

[00:15:10] Speaker 05:
No, it was my recollection I called in the 1990s

[00:15:16] Speaker 05:
in sub proceeding 93-1, the upper Skagit had submitted it as a proposed exhibit in that sub proceeding and then withdrew it.

[00:15:27] Speaker 05:
So it hasn't been considered.

[00:15:30] Speaker 05:
It's new information specific.

[00:15:33] Speaker 01:
So I just want to go back to my first question.

[00:15:34] Speaker 01:
I didn't quite understand your answer.

[00:15:37] Speaker 01:
On the Baker River now, does your tribe actually currently harvest any

[00:15:45] Speaker 01:
fish from the Baker River?

[00:15:46] Speaker 05:
No, we do not.

[00:15:51] Speaker 01:
And so if you were to prevail in this proceeding, then would that be shared with the Skagit and Swinomish on the Baker River?

[00:16:08] Speaker 05:
Yes, I think that equitable adjustment or allocation would have to be made.

[00:16:16] Speaker 05:
I guess the tribe's position is that how the Baker River works as a result of its FERC re-licensing, those are primarily hatchery fish.

[00:16:27] Speaker 05:
They're captured below the dam in a trap, transported above the dam where they can go to the hatchery, okay?

[00:16:37] Speaker 04:
Council, you wanted to reserve five minutes.

[00:16:39] Speaker 04:
You're down to four minutes.

[00:16:40] Speaker 04:
Do you want to reserve the balance of your time?

[00:16:45] Speaker 05:
Yeah, I do.

[00:16:47] Speaker 05:
I've got a lot to cover.

[00:16:48] Speaker 01:
Maybe we can answer this question.

[00:16:50] Speaker 04:
Oh, I'm sorry.

[00:16:51] Speaker 05:
I didn't realize you were... Yeah, but would the court entertain a couple of extra minutes beyond the four just because I've had to answer your questions and

[00:17:02] Speaker 05:
kind of interrupted by.

[00:17:04] Speaker 01:
Well, that's kind of the purpose is that by answering our questions, you're informing us.

[00:17:09] Speaker 01:
So just so you know.

[00:17:12] Speaker 05:
I'll reserve the rest.

[00:17:13] Speaker 05:
Thank you, Council.

[00:17:39] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:17:42] Speaker 00:
How's my sound?

[00:17:43] Speaker 00:
Sounds a little weird.

[00:17:44] Speaker 00:
Okay.

[00:17:45] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:17:47] Speaker 00:
My name is Emily Haley.

[00:17:48] Speaker 00:
I'm here on behalf of the Swinomish Indian tribal community, arguing on behalf of the Appellees.

[00:17:54] Speaker 00:
I will address why the District Court correctly concluded that it lacks subject matter jurisdiction and dismissed SOC's latest attempt to open treaty fisheries outside the waters that Judge Bolt determined

[00:18:10] Speaker 00:
Words, UNA in 1974.

[00:18:13] Speaker 00:
My colleague, Mr. Hawkins, will then address the procedural history in greater detail to demonstrate why Salk's claims are foreclosed under various finality doctrines.

[00:18:25] Speaker 00:
In its briefing and comments today, Salk has made a jumble of arguments, but the primary issue

[00:18:32] Speaker 00:
And the one that I want to start with is your question, Judge Fletcher, which is the significance of Paragraph 25A6.

[00:18:40] Speaker 00:
So that is the primary issue in this case.

[00:18:46] Speaker 00:
If Salk's finding has been specifically determined, then there is no continuing jurisdiction under Paragraph 25A6 and the district court properly dismissed.

[00:18:59] Speaker 00:
This court should affirm that dismissal for two reasons.

[00:19:03] Speaker 00:
First, the district court concluded that Sauk's UNA finding was, quote, unambiguous, specifically determined, and excludes any unnamed waters.

[00:19:17] Speaker 00:
For closing 25-86 jurisdiction, this finding is not only reasonable, but actually compelled by this court's 2023 decision in an uppers gadget versus Sauk.

[00:19:29] Speaker 00:
and should be upheld.

[00:19:31] Speaker 00:
And second, the Muckleshoot line of cases discussed in our briefing at length forecloses SOX's attempt to use 25A6 to relitigate the scope of SOX UNA for the third time.

[00:19:46] Speaker 00:
Turning to the first issue, the district court's conclusion that SOX UNA is unambiguous, specifically determined, and excludes unnamed waters is reasonable and should be upheld.

[00:19:58] Speaker 03:
You know, could you distinguish in your argument between the Skagit and the Baker Rivers?

[00:20:03] Speaker 03:
Because the Skagit, we've got allocations with respect to various tribes.

[00:20:08] Speaker 03:
Baker, we've got nothing.

[00:20:11] Speaker 03:
So why is there not a claim here with respect to Baker?

[00:20:17] Speaker 00:
to the Baker.

[00:20:18] Speaker 00:
So I think that the answer to that goes back to this court's decision in the upper Skagit case.

[00:20:26] Speaker 00:
So there, the primary ruling in that case was that Sauk's UNA finding is unambiguous, i.e.

[00:20:33] Speaker 00:
it included the waters that it listed and it excluded everything else.

[00:20:39] Speaker 00:
And because that case... Well, it said nothing about the other waters.

[00:20:42] Speaker 01:
Nothing about it.

[00:20:44] Speaker 00:
It says nothing about it, but if you look at the reasoning of the court, it first looks to the text of the finding and finds that on its face it's ambiguous.

[00:20:58] Speaker 00:
It then goes to the next step to say, let's look at the evidence.

[00:21:02] Speaker 00:
And because that case involved fishing in the Skagit River,

[00:21:07] Speaker 00:
it looked at the Skagit River and to the evidence.

[00:21:11] Speaker 03:
And so... And it listed Skagit River and lots of tributaries to the Skagit, but at least in my mind, importantly, said nothing about the Baker.

[00:21:24] Speaker 00:
It didn't, but I think that the holding is equally controlling with respect to that because the finding is unambiguous and because all of the evidence... As far as it goes, it's unambiguous, but there is nothing at all about Baker.

[00:21:40] Speaker 00:
Well, there was evidence about the Baker, and so... Well, evidence is different from finding, right?

[00:21:50] Speaker 00:
It is different from a finding, but where you have, and I think that this is what the Upper Skagit Court held, where you have

[00:21:58] Speaker 00:
An unambiguous finding that lists streams.

[00:22:00] Speaker 00:
You have a subsequent action that interprets that finding in light of the evidence and says there's evidence that they lived on the Skagit River.

[00:22:14] Speaker 00:
There's evidence that they fished in the Baker River and the Skagit River with their upper Skagit relatives and friends.

[00:22:20] Speaker 00:
there's evidence that they went down to the saltwater to procure marine life.

[00:22:25] Speaker 00:
All of that evidence was in front of Judge Bolt.

[00:22:28] Speaker 00:
And so while upper Skagit is strictly limited to the Skagit, because that's where the illegal fishing occurred, its rationale is equally applicable to the Baker and to the marine waters because- Isn't there a difference here because

[00:22:51] Speaker 01:
Judge Bolt's discussion and inclusion of the Skagit and the upper Skagit UNAs, and also the Swinomish, was very, very specific.

[00:23:04] Speaker 01:
And by targeting those tribes and omitting the Silk Tribe, that, as the court had said, our court had said, that was an omission that was intentional.

[00:23:18] Speaker 01:
But the difficulty we have, or

[00:23:21] Speaker 01:
The challenge I should say we have is that that same logic doesn't necessarily apply to the Baker River because it wasn't as if the Baker River was mentioned and it went here and there, but it excluded the Salk.

[00:23:34] Speaker 01:
The fact is it wasn't mentioned in the final decision.

[00:23:40] Speaker 01:
So why doesn't that leave that open?

[00:23:44] Speaker 00:
So that, that, um,

[00:23:48] Speaker 00:
That particular aspect of the court's analysis to say we find it significant that he did not include this gadget in socks, but he included it in Swinomish's and upper Skagit's, I think is equally applicable to the Baker.

[00:24:04] Speaker 00:
In Swinomish's UNA, he does not name the Baker UNA finding.

[00:24:09] Speaker 00:
He does not say Baker River, but he includes all of the tributaries, including the Baker River.

[00:24:15] Speaker 03:
How do you say that?

[00:24:16] Speaker 03:
Because he names the Skagit, and then he names very specific tributaries to the Skagit, but he doesn't name all of the tributaries, nor does he say, and all of the tributaries.

[00:24:27] Speaker 00:
But he includes them all, right?

[00:24:29] Speaker 03:
How do you know he includes them all?

[00:24:31] Speaker 00:
Because the finding says the UNA includes the Skagit River and its tributaries, with no limitation.

[00:24:42] Speaker 00:
And similarly with marine waters,

[00:24:45] Speaker 00:
Judge Bolt made marine UNA findings.

[00:24:50] Speaker 03:
But as I look at paragraph 131, we've got named creeks, correct?

[00:24:56] Speaker 00:
Yes, that's right.

[00:24:58] Speaker 03:
Yeah, and it doesn't say, and all others, does it?

[00:25:01] Speaker 00:
No, that's exactly the point.

[00:25:04] Speaker 00:
That's the distinction I'm trying to draw, is that when Judge Bolt intended to include the Skagit River and all of its tributaries, he knew how to do that.

[00:25:15] Speaker 00:
He used that language in Swinomish's UNA finding.

[00:25:19] Speaker 00:
Similarly, when he wanted to include marine waters, he knew how to do that.

[00:25:25] Speaker 00:
He included marine findings in Swinomish's UNA and in 17 other tribes' UNA.

[00:25:34] Speaker 00:
And the fact that he did not do that in SOCs

[00:25:37] Speaker 00:
When he had evidence in the record about what sock was doing in the Baker River about what sock was doing in in in the salt water going to procure to trade is significant and indicates that he did not intend to include them just like he did not intend to include this gadget.

[00:26:07] Speaker 03:
A different point, what am I supposed to do with shellfish in the salt water?

[00:26:13] Speaker 03:
I understand the claim here is for shellfish and fish that swim, but I'm asking specifically now as to shellfish.

[00:26:21] Speaker 03:
Does the Sauk tribe have rights to the shellfish?

[00:26:26] Speaker 00:
I respectfully disagree with Mr. Feyander's characterization of what was tried to Judge Bolt.

[00:26:36] Speaker 03:
I had a question.

[00:26:39] Speaker 03:
What's your position with respect to the right of the Sauk tribe to shellfish?

[00:26:43] Speaker 00:
I do not believe that the Sauk has rights to shellfish.

[00:26:47] Speaker 01:
And why not?

[00:26:48] Speaker 01:
And what's the basis for that?

[00:26:50] Speaker 00:
Because Judge Bolt listed the places that

[00:26:54] Speaker 00:
Sock has UNA.

[00:26:56] Speaker 00:
He did not include any marine waters.

[00:26:59] Speaker 00:
In a separate factual finding, he acknowledges that they go down to the salt to procure, not fish.

[00:27:08] Speaker 00:
And in the Lane report that is underlying that finding, she is explaining they go to trade.

[00:27:16] Speaker 01:
So let me ask you though, I thought this point was a little bit different.

[00:27:21] Speaker 01:
And he was saying in the complaint,

[00:27:24] Speaker 01:
what we're talking about is swimming fish and later shellfish comes up in later proceedings and therefore it's not synonymous or it's not co-extensive, the original boat findings.

[00:27:43] Speaker 01:
What is your response to this

[00:27:47] Speaker 01:
characterization of the complaint.

[00:27:51] Speaker 00:
I see I'm out of time, but if I may answer.

[00:27:55] Speaker 00:
Of course.

[00:27:57] Speaker 00:
It is true that final decision one was primarily focused on anadromous species.

[00:28:03] Speaker 00:
However, Dr. Lane's reports, which she prepared for almost all of the tribes, included all of their fishing activities.

[00:28:11] Speaker 00:
And so if you go through those reports, they are replete with

[00:28:16] Speaker 00:
I'm discussing all different types of species, not just a natural species, but mollusks, clams, dogfish, all manner of marine life.

[00:28:27] Speaker 00:
And so that

[00:28:29] Speaker 00:
and the places that the tribes were taking all of those species ultimately led to her conclusions about where the tribe had customary fishing and ultimately led to Judge Bolt's determination as to where the UNAs were.

[00:28:46] Speaker 00:
Later in the shellfish proceeding, there was a specific ruling that the marine and freshwater UNAs are synonymous.

[00:28:59] Speaker 00:
But that does not.

[00:29:01] Speaker 00:
But that is not an artificial distinction that would allow sock to go forward now on a claim to shellfish in marine waters.

[00:29:13] Speaker 04:
Thank you, counsel.

[00:29:14] Speaker 00:
Thank you.

[00:29:45] Speaker 02:
May please the court.

[00:29:47] Speaker 02:
David Hawkins on behalf of the Upper Skagit Indian Tribe.

[00:29:51] Speaker 02:
Your Honor, I've put together a script here, but given the questioning, I'd like to address some of the issues that you presented previously.

[00:29:59] Speaker 02:
First, as it relates to the Baker River.

[00:30:01] Speaker 02:
A little geography would be helpful here.

[00:30:03] Speaker 02:
I'm not sure if you're familiar with the Skagit, but the Skagit's one of the biggest rivers in the western region.

[00:30:10] Speaker 02:
It has a number of tributaries.

[00:30:11] Speaker 02:
One of them happens to be the Baker River.

[00:30:14] Speaker 02:
So when Judge Boat discussed the Baker River, or I'm sorry, the Skagit River, he necessarily included it, and that's easily established by looking at what upper Skagit's UNA was determined to be in final decision one.

[00:30:28] Speaker 02:
Judge Bolt found that upper Skagit's UNA included the Skagit River.

[00:30:34] Speaker 02:
He didn't mention the Baker River, but it was understood that the Baker was part of that.

[00:30:39] Speaker 02:
And so in this instance, the idea that because the Baker River isn't specifically called out as being excluded,

[00:30:47] Speaker 02:
in 2001, that's because it's understood that it's part of the Skagit River system.

[00:30:54] Speaker 03:
But wait a minute.

[00:30:54] Speaker 03:
I'm looking at paragraph 131.

[00:30:57] Speaker 03:
We're naming very specific rivers and creeks that are tributaries to the Skagit.

[00:31:04] Speaker 02:
That is correct, Your Honor.

[00:31:05] Speaker 03:
It does not include the Baker.

[00:31:06] Speaker 02:
It does not.

[00:31:07] Speaker 02:
That is Sox UNA.

[00:31:08] Speaker 02:
And Sox UNA is very clearly defined and it's fairly limited.

[00:31:13] Speaker 02:
And the reason it's very limited is because it was based upon Barbara Lane's report, which specifically addressed the areas and those very creeks that are listed in this finding a fact.

[00:31:24] Speaker 02:
So the court was

[00:31:26] Speaker 02:
very aware of what evidence was presented in the original decision.

[00:31:31] Speaker 03:
But those creeks, they're saying the SOC do not have rights with respect to them, correct?

[00:31:37] Speaker 03:
Paragraph 131.

[00:31:40] Speaker 02:
I'm sorry, Your Honor.

[00:31:41] Speaker 02:
I might not be understanding what you're saying.

[00:31:44] Speaker 02:
131 sets forth the UNA that SOC does have, and so all of the creeks

[00:31:51] Speaker 02:
and the Sauk River that are listed in 131 are what they were able to prove through Barbara Lane's report as it pertains to what their UNA is.

[00:32:00] Speaker 02:
Notably, it does not include this gadget.

[00:32:03] Speaker 02:
It does not, therefore, and another thing that's important from a geographical perspective just to help you, the Baker is far downriver from the Sauk.

[00:32:12] Speaker 02:
It's a long travel to get to the Baker from the SOC.

[00:32:16] Speaker 02:
And there's reference in Barbara Lane's report talking about the SOC fishing with upper Skagit tribal members.

[00:32:23] Speaker 02:
I would say that means by invitation, not as a matter of right, in the Baker River.

[00:32:29] Speaker 02:
So they were aware, the court was aware of the fact that SOC did have some fishing at the Baker pursuant to Barbara Lane's report, and yet did not include that in

[00:32:41] Speaker 02:
their UNA determination.

[00:32:43] Speaker 02:
There's another component as it relates to the law of the case.

[00:32:48] Speaker 02:
And the law of the case relates to adjacent waters, and it's helpful here.

[00:32:52] Speaker 02:
In sub proceeding 1901, Suquamish 1 and 2, you had adjacent areas that were adjacent to what a tribe was claiming to fish, what they asserted their UNA included.

[00:33:04] Speaker 02:
The courts found in both of those that if Judge Boat did not include

[00:33:10] Speaker 02:
specific waters within a tribe's UNA, he determined not to include them for a reason.

[00:33:17] Speaker 02:
When you look at Lummi's UNA, for example, we had a case with Lummi where they had a very broad description of what their UNA was.

[00:33:25] Speaker 02:
We asserted that it did not include portions of Samish Bay

[00:33:31] Speaker 02:
The court ruled in our favor because it looked to what the intent of Judge Bolt was at the time and the evidence that was before him.

[00:33:39] Speaker 02:
And there was nothing regarding the areas that issue there and we prevailed.

[00:33:46] Speaker 02:
The same applies here.

[00:33:48] Speaker 02:
This is not a case of first impression.

[00:33:50] Speaker 02:
I mean, this is deja vu all over again.

[00:33:52] Speaker 02:
You have 2001, just three years ago, that addresses these very issues.

[00:33:58] Speaker 02:
Upper Skagit brought a 25A1 claim saying SOC was fishing in violation of final decision one.

[00:34:06] Speaker 02:
At the district court level, SOC argued that they weren't violating final decision one because they were fishing within the confluence of the rivers and therefore they weren't in this gadget.

[00:34:17] Speaker 02:
On appeal, they then argued 25A6 asserting that their UNA is ambiguous.

[00:34:24] Speaker 02:
Well, at that time, they should have come before the court and presented the evidence that consists of what they're claiming now.

[00:34:30] Speaker 02:
They attempted to do that, but they failed.

[00:34:33] Speaker 02:
It's the same thing here.

[00:34:34] Speaker 02:
Yet again, they're conflating the issues.

[00:34:37] Speaker 02:
When you talk about an opportunity to prove your case, we moved for a 12b1 factual motion to dismiss.

[00:34:46] Speaker 02:
When we filed our motion, they had the opportunity to respond with all of the facts and argument possible to support their claim.

[00:34:55] Speaker 02:
They in fact did that.

[00:34:57] Speaker 02:
If you look at ER, I think it's 31 to 35.

[00:35:06] Speaker 02:
I'm sorry, ER 31 to 36.

[00:35:08] Speaker 02:
They lay out their arguments there.

[00:35:10] Speaker 02:
They talk about the evidence.

[00:35:11] Speaker 02:
They talk about the previous sub proceedings.

[00:35:14] Speaker 02:
Judge Martinez considered all of that.

[00:35:16] Speaker 02:
He decided, no, this issue has been resolved.

[00:35:20] Speaker 02:
2001 gives you all the information you need here.

[00:35:25] Speaker 02:
Sock is coming for a third time now.

[00:35:28] Speaker 01:
Just to be clear then, the allocation and final decision that went to the Skagit and all of the tributaries would exclude

[00:35:44] Speaker 01:
salt because when the UNA was allocated to salt, Baker River was never mentioned as one of the creeks or the creeks that it was allocated.

[00:35:56] Speaker 01:
Is that right?

[00:36:00] Speaker 02:
I believe that's correct, Your Honor.

[00:36:02] Speaker 02:
I have to think about that.

[00:36:03] Speaker 02:
But essentially,

[00:36:05] Speaker 02:
at the time in 1974 when their UNA was established and Barbara Lane was looking at where they customarily fished at and before treaty time.

[00:36:13] Speaker 02:
Keep in mind this isn't talking about there's a specific standard here.

[00:36:16] Speaker 02:
This isn't just

[00:36:17] Speaker 02:
You travel down to the saltwater on occasion.

[00:36:20] Speaker 02:
There has to be frequency.

[00:36:22] Speaker 02:
There has to be a conduct at and before treaty time that meets the standard.

[00:36:27] Speaker 02:
Barbara Lane doesn't talk about them fishing in any of the disputed areas here.

[00:36:31] Speaker 02:
She doesn't talk about them fishing even in the saltwater areas.

[00:36:34] Speaker 02:
She talks about them fishing in the specific areas that are identified in 131 and no more.

[00:36:41] Speaker 02:
That is determinative here.

[00:36:43] Speaker 02:
Not only is it determinative, but it's been litigated here.

[00:36:46] Speaker 02:
So sock is attempting to usurp the mandate that this court issued in 2001 and come back yet again to prove the same claim that they put forth in 2001 and failed.

[00:36:57] Speaker 01:
I don't know.

[00:36:57] Speaker 01:
I don't want to duplicate what we asked before, but obviously we have many, we have decades of litigation here and I do have a question then because you've mentioned the Marine claims and council.

[00:37:12] Speaker 01:
seem to distinguish between the Andromeda's fish and the shellfish because of the nature of the complaint.

[00:37:21] Speaker 01:
And in the end, he says, it doesn't matter if in the end a fish is a fish and we have the right in the marine claims.

[00:37:31] Speaker 01:
What is your position then as to the fact that as to the marine claims,

[00:37:42] Speaker 01:
for SOC that Judge Volk didn't make an allocation one way or the other, perhaps left it open.

[00:37:52] Speaker 02:
Your Honor, Barbara Lane's report talks about SOC traveling to the marine waters.

[00:37:57] Speaker 02:
She talks about them trading, procuring,

[00:38:01] Speaker 02:
at the marine waters.

[00:38:03] Speaker 02:
There's no indication of frequency.

[00:38:05] Speaker 02:
There's no indication of customarily fishing in those areas.

[00:38:08] Speaker 02:
There's nothing in her report that indicates that they did anything more than go to the marine waters to procure fish.

[00:38:16] Speaker 03:
to procure marine life unavailable in their own territory.

[00:38:20] Speaker 03:
Now that suggests to me, just ordinary language, well the anadromous fish are available in their own territory so they're going down to procure marine life unavailable which means to me shellfish.

[00:38:35] Speaker 03:
That seems to me the ordinary understanding of that language, to procure.

[00:38:39] Speaker 03:
Now if I'm

[00:38:41] Speaker 03:
putting myself in their position, going down to procure it.

[00:38:44] Speaker 03:
I'm not going to trade for shellfish.

[00:38:46] Speaker 03:
I'm going to dig them, of course.

[00:38:48] Speaker 03:
I mean, you don't go down to the beach and trade for somebody else for shellfish that are right there to be dug.

[00:38:57] Speaker 03:
Your Honor, that's a difficult discussion because there was a lot of trade and areas... I understand there was a lot of trade, but it does not make sense to me that I'm going to go down or a tribal member is going to go down to the beach

[00:39:10] Speaker 03:
and trade for shellfish that are available for the digging.

[00:39:14] Speaker 02:
And that's available for the digging, the point that I was going to make, Your Honor, because there's this idea that these areas were just open and available to all tribes to come and do whatever they wanted.

[00:39:24] Speaker 02:
Nothing could be further from the truth.

[00:39:26] Speaker 02:
Territories were protected.

[00:39:28] Speaker 02:
You didn't just come into another tribe's territory and say, we're going to start collecting fish here.

[00:39:33] Speaker 02:
There were wars that happened.

[00:39:36] Speaker 02:
There were canoes that were stored to protect from incursion into areas.

[00:39:41] Speaker 02:
So this wasn't something that was just, you come and go wherever you want and take fish wherever you want.

[00:39:46] Speaker 02:
That's not the scenario and that's in the record of this case.

[00:39:50] Speaker 01:
But I ask you, and this may be beyond what you were prepared to argue, but having to do with the 1980 report, it doesn't appear to be in the record.

[00:40:00] Speaker 01:
So we don't know if there's anything new by Dr. Lane there.

[00:40:06] Speaker 01:
that was beyond the earlier report.

[00:40:11] Speaker 01:
Has that report been considered by any court, to your knowledge?

[00:40:16] Speaker 02:
Your Honor, I'm unaware of that.

[00:40:18] Speaker 02:
To be frank, I apologize for not having an answer, because it wasn't part of the record.

[00:40:22] Speaker 02:
I didn't review it, and I just can't speak on that.

[00:40:26] Speaker 01:
All right, I appreciate that.

[00:40:27] Speaker 01:
Thank you.

[00:40:28] Speaker 01:
OK, thank you, counsel.

[00:40:29] Speaker 01:
Thank you, Your Honor.

[00:40:42] Speaker 05:
May I place the court?

[00:40:45] Speaker 01:
Mr. Fiendor, maybe I could pick up where I was asking the last council, because this really goes more to your Baker River claim.

[00:40:54] Speaker 01:
You want to introduce, if you were to be remanded, the 1980 report by Dr. Lane.

[00:40:59] Speaker 01:
But my understanding is that's not in the record.

[00:41:02] Speaker 01:
And so we don't even know if there's any additional information in there that was not before Judge Boak.

[00:41:11] Speaker 01:
Do you have a response or information you can provide on that?

[00:41:17] Speaker 05:
I would say that where the district court made an error regarding the 1980 Lane report was, and the record is very short, the district court judge issued two orders.

[00:41:35] Speaker 01:
But is the 1980 report in the record?

[00:41:39] Speaker 01:
I didn't find it.

[00:41:43] Speaker 05:
It's not in the 1974 record.

[00:41:46] Speaker 01:
No, is it in the record?

[00:41:47] Speaker 05:
It is in the record in this case that you're hearing the appeal on.

[00:41:53] Speaker 05:
It's ER-12.

[00:41:57] Speaker 03:
In ER-12?

[00:41:58] Speaker 03:
Where the district court aired... The reference to it in ER-12, is the report itself in the record in front of us?

[00:42:04] Speaker 05:
No, that's the error that the district court made.

[00:42:07] Speaker 05:
The district court said, well, it seems like

[00:42:11] Speaker 05:
This would include information already considered by Judge Bolt, because Dr. Lane was an expert witness.

[00:42:20] Speaker 01:
But did you put the report in the record before the district court?

[00:42:25] Speaker 01:
No, not the record.

[00:42:27] Speaker 05:
We didn't get to, because the district court.

[00:42:30] Speaker 01:
Well, no, you can put in there whatever you want.

[00:42:32] Speaker 01:
They don't have to consider it.

[00:42:33] Speaker 01:
But we're kind of left in this very odd position where you're making this argument about the 1980 report.

[00:42:42] Speaker 01:
which has not been actually in the record or wasn't submitted by you to argue to the district court why it should make a certain determination.

[00:42:53] Speaker 01:
That's what I'm having a little trouble with.

[00:42:56] Speaker 05:
Okay.

[00:42:56] Speaker 05:
Well, what we have a trouble with is the district court concluded without even reading that report.

[00:43:04] Speaker 05:
Okay.

[00:43:05] Speaker 05:
Which we had informed the court that we were going to use and in support of the claim, but you didn't the district court simply without even.

[00:43:16] Speaker 05:
reading the report or having it, which wasn't extant in 1974, said, well, I think it probably concludes information Judge Bolt already considered.

[00:43:26] Speaker 01:
But he hadn't even read it yet.

[00:43:27] Speaker 01:
OK, but just to be clear, you didn't submit it to the district court in any of your filings.

[00:43:33] Speaker 01:
And so therefore, we don't have it either.

[00:43:34] Speaker 01:
Is that right?

[00:43:35] Speaker 05:
Right.

[00:43:36] Speaker 05:
And the district court didn't have it.

[00:43:38] Speaker 03:
But you were in a position, although this is slightly odd, you were in a position that's analogous to 12b6.

[00:43:45] Speaker 03:
That is to say, you're making allegations.

[00:43:48] Speaker 05:
yet but under twelve b six if that's a standard well that's what i mean the allegations of it's a low standard well that's that's what that women that address for determination is like a complaint it's presumed to be true and you don't plead evidence in it what that didn't have to get that that's the that's that's the point of my question yes uh... well let me get into the rebuttal uh... throughout judd council was out of time they the other side went about two minutes over so i'll give you a little bit it's well

[00:44:16] Speaker 05:
When you're determining constitutional rights and whether a right is protected by the Constitution,

[00:44:23] Speaker 05:
It's kind of easy because there is a constitutional convention.

[00:44:27] Speaker 05:
There are the records of James Madison.

[00:44:29] Speaker 05:
You got stuff to read, okay?

[00:44:32] Speaker 05:
And treaties are constitutional law under Article VI of the U.S.

[00:44:36] Speaker 05:
Constitution, but in order to interpret what rights are protected by those, you know, the founding father was Judge Bolt, okay?

[00:44:48] Speaker 05:
Council for Upper Skagit and I brought up the blue book

[00:44:52] Speaker 05:
And what's important is not what Judge Bolt didn't say, it's what he said, okay?

[00:45:00] Speaker 05:
He said at the start of his decision for each of the plaintiff's tribes, the findings set forth regarding their principal usual and custom places includes some, but by no means all of them.

[00:45:16] Speaker 05:
So all of the tribes, Soxhautl tribes,

[00:45:21] Speaker 05:
uh... customary fishing grounds were not uh... included and it's inappropriate for counsel to argue that judge bolt must have known this or the case primarily focused on this or that procure means trade judge bolt said none of those things procure means you go get them

[00:45:45] Speaker 05:
If he meant trade, he would have said trade.

[00:45:48] Speaker 05:
The other thing is, let's talk about this 2001 decision.

[00:45:54] Speaker 05:
There are two paragraphs critical.

[00:45:58] Speaker 05:
That case was initiated by the Upper Skagit tribe under paragraph 25A1, which means that you are alleging that a tribe like Sanxuatl is exceeding

[00:46:10] Speaker 05:
the scope of the decree, they're not in conformity with it.

[00:46:13] Speaker 05:
So in 2001, like Councillor Per-Skagit said, the tribe opened a season at the mouth of the Cascade and Skagit rivers.

[00:46:22] Speaker 05:
Unfortunately, a couple of fishermen floated too far down river.

[00:46:27] Speaker 05:
The judge found that they were actually in the main stem of the Skagit.

[00:46:31] Speaker 05:
This gadget wasn't listed in Finding a Fact 131.

[00:46:35] Speaker 05:
That's all you look at.

[00:46:37] Speaker 05:
They're outside.

[00:46:37] Speaker 04:
Thank you, counsel.

[00:46:38] Speaker 04:
I think we have your argument.

[00:46:40] Speaker 04:
OK.

[00:46:40] Speaker 04:
This case is submitted and we are adjourned for today.

[00:46:44] Speaker 00:
All rise.

[00:46:55] Speaker 00:
Peer ye, peer ye.

[00:46:55] Speaker 00:
All persons having had business with the Honourable United States Court of Appeals for the Ninety Circuit will now depart.

[00:46:58] Speaker 00:
For this court, for this session, now stands