United States v. State of Washington

Honorable Ricardo S. Martinez

7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINTON 8 AT SEATTLE UNITED STATES OF AMERICA, et al., No. C70-9213 RSM Plaintiffs, v. STIPULATION AND ORDER 11 REGARDING BOUNDARIES OF STATE OF WASHINGTON, et al., HOH INDIAN TRIBE U&A Defendants.

Pursuant to LCR 7(d)(1) and LCR 10(g), the Hoh Indian Tribe (“Hoh” or “Hoh Tribe”), Quileute Indian Tribe (“Quileute”), Quinault Indian Nation (“Quinault”), State of Washington (“State”), and Makah Indian Tribe (“Makah”) (collectively, the “Stipulating Parties”), through their undersigned counsel of record, hereby stipulate to the following: STIPULATION WHEREAS, the undersigned Stipulating Parties are parties to the ongoing litigation in United States v. Washington, Case No. C70-9213 RSM in the United States District Court for the Western District of Washington; WHEREAS, the Hoh Tribe seeks a determination solely of the western boundary of its Pacific Ocean treaty-based usual and accustomed fishing grounds and stations (“U&A”), reserved under the Treaty of Olympia, 12 Stat. 971, beyond the three nautical mile ocean boundary of State jurisdiction; 3 WHEREAS, on September 2, 2020, the Hoh Tribe held a meet and confer pursuant to the requirements of Paragraph 25 of the Permanent Injunction of March 22, 1974, 384 F. Supp. 5 312 (W.D. Wash. 1974), as amended and supplemented by the Order Modifying Paragraph 25 of the Permanent Injunction dated August 23, 1993 (Dkt. 13599) and the Amended Supplemental Order on Paragraph 25 Procedures dated November 20, 2012 (Dkt. 20254) (collectively, the “Permanent Injunction”), in which the Stipulating Parties engaged in preliminary settlement discussions and ascertained that a stipulated resolution regarding the western boundary of the Hoh Tribe’s Pacific Ocean treaty-based U&A should be possible; 11 WHEREAS, the Hoh Tribe exchanged information regarding the factual and legal basis for the western boundary of its Pacific Ocean treaty-based U&A with the Stipulating Parties, which exchanges included other parties to U.S. v. Washington; 14 WHEREAS, on May 26, 2023, the Hoh Tribe reconvened the meet and confer at the request of Makah, which was attended by the Stipulating Parties and other parties to U.S. v. Washington; 17 WHEREAS, the Stipulating Parties, mindful of the Court’s persistent encouragement for the parties of U.S. v. Washington to reach agreement without the need for a determination by the Court, especially on the issue of treaty fishing U&A areas, see, e.g., Order Granting S’Klallam and Squaxin Island Tribes’ Motions for Summary Judgment and Denying Skokomish Indian Tribe’s Cross-Motion for Summary Judgment in Subproceeding 17-03 dated August 30, 2017 at 18 (Dkt. 21555) (“Time and time again, this Court has stated that the Tribes are in the best position to craft agreements that will adequately meet their needs.”), engaged in further exchanges of information and settlement discussions, through which they reached agreement on the terms of the present Stipulation and proposed Order regarding the western boundary of the Hoh Tribe’s Pacific Ocean treaty-based U&A; and 4 WHEREAS, the Hoh Tribe agrees that entry of this Stipulation and Order will satisfactorily resolve the western boundary of the Hoh Tribe’s Pacific Ocean treaty-based U&A.

7 NOW THEREFORE, THE STIPULATING PARTIES STIPULATE AS FOLLOWS: 8 (1) The western boundary of the Hoh Tribe’s Pacific Ocean treaty-based U&A has not 9 previously been “specifically determine[d]” by the Court in Final Decision #1, 384 10 F. Supp. 312, or pursuant to Paragraph 25(a)(6) of the Permanent Injunction; 11 (2) Although the Stipulating Parties may dispute certain information shared by the Hoh 12 Tribe, the direct evidence and reasonable inferences drawn from documentary 13 exhibits, expert testimony, and other relevant sources, U.S. v. Washington, 129 F.

14 Supp. 3d 1069, 1110 (W.D. Wash. 2015) (citing U.S. v. Washington, 626 F. Supp. 15 1405, 1531 (W.D. Wash. 1985)), viewed in light of applicable law are sufficient to 16 support a western boundary of the Hoh Tribe’s Pacific Ocean treaty-based U&A 17 located 30 or 40 nautical miles from the mainland Pacific coast shoreline, 18 depending on the latitude (as specified in (4) below); 19 (3) Certain findings of fact and conclusions of law in Final Decision #1, in which the 20 Hoh Tribe was a party, and Subproceeding No. 09-01, 129 F. Supp. 3d 1069 (W.D. 21 Wash. 2015), in which the Hoh Tribe was an interested party, also support a 22 western boundary of the Hoh Tribe’s Pacific Ocean treaty-based U&A located 30 or 1 40 nautical miles from the mainland Pacific coast shoreline, depending on the 2 latitude (as specified in (4) below); 3 (4) Consistent with the Amended Order Regarding Boundaries of Quinault and 4 Quileute U&As in Subproceeding 09-01 dated March 21, 2018 (Dkt. 449), a 5 narrative description of the Hoh Tribe’s ocean offshore U&A is: 6 Hoh offshore U&A: A polygon commencing at the Pacific coast shoreline near the 7 mouth of the Quillayute River, located at latitude 47°54’30” north, longitude 8 124°38’31” west; then proceeding west approximately forty nautical miles at that 9 latitude to a northwestern point located at latitude 47°54’30” north, longitude 10 125°38’18” west; then proceeding in a southeasterly direction mirroring the 11 coastline at a distance no farther than forty nautical miles from the mainland Pacific 12 coast shoreline, to a point located at latitude 47°31’42” north, longitude 125°20’26” 13 west, then proceeding east along that line of latitude approximately ten nautical 14 miles to a point located at latitude 47°31’42” north, longitude 125°5’48” west, 15 then proceeding in a southeasterly direction mirroring the coastline at a distance no 16 farther than thirty nautical miles from the mainland Pacific coast shoreline to a 17 point located at latitude 47°21’00” north, longitude 125°2’52” west; then 18 proceeding east along that line of latitude to the Pacific coast shoreline near the 19 mouth of the Quinault River, located at latitude 47°21’00” north, longitude 20 124°18’8” west; 21 (5) The Hoh Tribe expressly reserves the right to seek a determination pursuant to 22 Paragraph 25(a)(6) of the Permanent Injunction of the latitudinal northern and/or 23 southern ocean boundaries of its Pacific Ocean treaty-based U&A in the future, but 1 in no event will the Hoh Tribe claim U&A north of a line drawn westerly from the 2 Norwegian Memorial along latitude 48°2’15” north; and provided further that by 3 entering into this Stipulation no Stipulating Party waives any claims, defenses, or 4 arguments relating to a future request for determination of the Hoh Tribe’s northern 5 or southern U&A boundaries pursuant to Paragraph 25(a)(6); and 6 (6) Nothing in this Stipulation or proposed Order modifies, amends, or otherwise alters 7 any finding of fact, conclusion of law, or order of the Court in Final Decision #1 or 8 Subproceeding 09-01. Nothing in this Stipulation or proposed Order may be 9 construed as a waiver by any Stipulating Party of any claims, defenses, or 10 arguments relating to any future request for determination of a Tribal Stipulating 11 Party’s U&A, except with respect to: (a) the Hoh Tribe’s commitment in (5) above 12 that it will not claim U&A north of 48°2’15”; and (b) the western boundary of the 13 Hoh Tribe’s Pacific Ocean treaty-based U&A that is the subject of this Stipulation.

14 (7) The Stipulating Parties agree that this Stipulation may be entered as an order of the 15 Court in the Court’s exercise of its continuing jurisdiction in the main case of U.S. 16 v. Washington because the Stipulating Parties have reached a settlement and 17 agreement regarding the western boundary of the Hoh Tribe’s Pacific Ocean treaty- 18 based U&A through the Permanent Injunction’s Paragraph 25(b)(1) procedures, 19 which are designed and intended to resolve issues in the case without resort to 20 litigation, in precisely the manner demonstrated by this Stipulation. Further, the 21 subject of the Stipulation is appropriate for an order of the Court because entry of 22 orders regarding Tribal U&As has been a core function of the Court throughout the 23 long history of this case. Accordingly, the Stipulating Parties request that the Court 1 enter an order in the main case adopting their settlement and agreement regarding 2 the western boundary of the Hoh Tribe’s Pacific Ocean treaty-based U&A because 3 there are no remaining issues requiring resolution in a new subproceeding.

4 However, in the event the Court, after an opportunity for briefing and argument, 5 were to determine that filing of a separate “Request for Determination” (RFD) is 6 necessary to enter this stipulated proposed Order, the Stipulating Parties agree that: 7 (1) the Paragraph 25(b)(1) pre-conditions necessary for the filing of an RFD have 8 been satisfied; and (2) the Hoh Tribe may proceed with filing an RFD, which shall 9 consist in material part of this Stipulation and proposed Order.

10 (8) The Stipulating Parties respectfully request that the Court defer adoption of the 11 proposed Order for 30 days in order to provide U.S. v. Washington parties with 12 notice and an opportunity to review and submit any views to the Court regarding 13 this Stipulation and proposed Order. In the event of any submissions, the 14 Stipulating Parties request 14 days from the end of the 30-day period to respond.

16 Respectfully submitted this 16th day of October 2023.

17 Attorneys for the Hoh Indian Tribe Attorneys for the Quileute Indian Tribe /s/ Craig J Dorsay /s/ Kelly A. Mennemeier______________ Craig J. Dorsay, WSBA #9245 Kelly A. Mennemeier, WSBA #51838 Lea Ann Easton, WSBA #38685 Foster Garvey PC Kathleen M. Gargan, WSBA #56452 [email protected] Corin LaPointe – Aitchison, WSBA #54924 Dorsay & Easton LLP [email protected] [email protected] [email protected] [email protected] Attorneys for the Quinault Indian Nation Attorneys for the Makah Indian Tribe /s/ Eric Nielsen_______________________ /s/ Brian C. Gruber___________________ Eric Nielsen WSBA #12773 Brian C. Gruber WSBA #32210 Nielsen Koch& Grannis, PLLC Anna E. Brady WSBA #54323 Ziontz Chestnut Lori Bruner WSBA #26652 [email protected] Office of Attorney General [email protected] [email protected] [email protected] Attorneys for the State of Washington /s/ Joseph V. Panesko_________________ ROBERT W. FERGUSON Attorney General JOSEPH V. PANESKO, WSBA #25289 Senior Counsel KOALANI KAULUKUKUI-BARBEE, WSBA #50642 Assistant Attorney General [email protected] [email protected]

1 ORDER 2 The Stipulating Parties having assented to the foregoing Stipulation as evidenced by the signatures of their respective counsel of record, it is hereby 4 ORDERED THAT THIS STIPULATION IS HEREBY ADOPTED AS AN ORDER OF THIS COURT.

6 DATED this 16th day of November, 2023.

A RICARDO S. MARTINEZ 9 UNITED STATES DISTRICT JUDGE

3 CERTIFICATE OF SERVICE

I hereby certify that on October 16, 2023, I electronically filed the Stipulation and [Proposed] Order Regarding Boundaries of Hoh Indian Tribe U&A with the clerk of the court using the CM/ECF system which will send notice of the filing to all parties registered in the CM/ECF system for this matter.

DORSAY & EASTON LLP /s/ Craig J. Dorsay Craig J. Dorsay, WSBA #9245