UNITED STATES of America, et al., Plaintiffs, v. State of WASHINGTON, et al., Defendants, 20 F. Supp. 3d 777

TABLE OF CONTENTS ORDER PAGE Order on Pending Motions (1/16/04) 782 Order Denying Petition for Review (1/22/04) 783 Order Granting Suquamish Tribe’s Motion for a Preliminary Injunction (5/18/04) 784 Memorandum on Order Granting Suquamish Tribe’s Motion for a Preliminary Injunction (5/28/04) 784 Order on Motion for Reconsideration (6/10/04) 789 Stipulation and Order of Continuance (7/15/04) 790 Order Denying Motion for a Temporary Restraining Order (7/16/04) 796 Stipulation and Order of Dismissal (9/27/04) 797 Order Granting Suquamish Tribe’s Motion for

Summary Judgment re: A & K Trust (3/21/05) 797 Order on Motion of Certain Tribes to Adopt an Interim Halibut Commercial Fishery Management Plan (5/3/05) 797 Order on Cross — Motion for

Summary Judgment (7/20/05), (393 F.S.2d 1089) See Appendix Order on Pending Motions (9/6/05) 798 Order on Motion for Reconsideration (10/21/05) 800 Order on Motion to Dismiss (10/27/05) 802 Order on Motion to Compel (12/19/05) 806 Decision (12/30/05) 809 Order on Motions for Clarification and for Reconsideration (1/23/06) 814 Order on Motion for Reconsideration (1/26/06) 815 Order on Motion for Reconsideration (3/17/06) 818 Order on Motion for Clarification (3/17/06) 818 Order on Motion for a Protective Order (8/15/06) 818 Order on Motion to Compel (8/15/06) 820 Order on Pending Motions to Strike Expert Witnesses (10/10/06) 821 Order on Motion to Dismiss (11/21/06) 822 Order on Pending Motions (12/4/06) 827 COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 2006) ORDER ON PENDING MOTIONS Subproceeding No. 89-3 (January 16, 2004) RICARDO S.

MARTINEZ, United States Magistrate Judge. Now before the Court are cross-motions for amendment and for clarification of the previous Order on Motion for Reconsideration. The Tulalip Tribes, Swinomish Tribal Community, and Upper Skagit Indian Tribe (“Tribes”) have joined in a motion to alter or amend the judgment. Dkt. # 17608. The Suquamish Tribe, in turn, has moved for clarification of the same motion. Dkt. # 17617. Having considered the motions and all memoranda filed in support and in opposition, the Court does now find and ORDER:

(1) The Tribes’ Motion to Alter or Amend the Judgment. The parties are familiar with the facts and issues related to the current dispute. The Tribes seek amendment of the language in the Order on Motion for Reconsideration, striking footnote 3 in the Order on Motion for a Temporary Restraining Order (TRO) only to the extent that it could be considered to address primary rights.

The Tribes ask that the footnote be stricken in its entirety; they argue that the footnote amounts to a sua sponte determination by the Court of the extent of the Suquamish Tribe’s usual and accustomed fishing areas, thus exceeding the jurisdictional scope of the TRO proceedings.

However, the Tribes put in issue the scope of the Suquamish Tribe’s usual and accustomed fishing areas by asserting that scope as one basis for the requested TRO: Suquamish has violated the Implementation Order, State/Tribal Harvest Plan, and intertribal harvest management agreements for Region 2E by issuing regulations without participating in management discussions, executing applicable management plans, and otherwise failing to follow the proper procedures for opening a fishery.

Suquamish’s actions threaten to disturb management planning, and disrupt the fishery and the Tribes’ winter crab harvest in Region 2E. Suquamish has also violated the Stipulation Re: Presentation of Tribal Usual and Accustomed Fishing Places (“Shellfish Stipulation”) by seeking to expand the status quo established for shellfishing rights outside the scope of the usual and accustomed fishing grounds and stations (“U & A”) previously determined in United States v. Washington and stipulated agreements. Motion for Temporary Restraining Order, p 2 (emphasis added).

In support of their “status quo” argument, the Tribes presented evidence that the Suquamish had never fished in Region 2E; this evidence was disputed by the Suquamish. It was thus necessary for the Court, in ruling on the TRO, to determine whether Region 2E is within the scope of the Suquamish Tribe’s U & A as it was previously determined by Judge Boldt or, if relevant, as modified by subsequent stipulations or determinations. United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash 1978).

There was no evidence before the Court which would allow it to conclude that Region 2E is not within the Suquamish U & A as defined by Judge Boldt, nor any evidence that Judge Boldt’s determination has been modified or limited by subsequent proceedings or agreements. Therefore, the Court ruled that the Tribes had not met the “threat of irreparable harm” or “probability of success on the merits” standards for obtaining a TRO. Dkt. # 17563.

Such ruling does not amount to an “adjudication” of the Suquamish Tribe’s U & A; as the Tribes themselves asserted in their original Motion for a TRO, that was “previously determined in United States v. Washington and stipulated agreements.” Accordingly, the Tribes’ Motion to Alter or Amend the Judgment is GRANTED IN PART.

Footnote 3 of the Order on Motion for a Temporary Restraining Order is hereby STRICKEN, to be replaced with language as follows: FN 3: The Court notes that “[t]he usual and accustomed fishing places of the Suquamish Tribe include the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into western side of this portion of Puget Sound and also Hood Canal,” United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash. 1978). No evidence has been presented to the Court which would place Region 2E outside of this area.

(2) The Suquamish Tribe’s Motion for Clarification. In a cross-motion, the Suquamish Tribe moves the Court to allow footnote 3 to stand, but asks that the Court clarify the discussion regarding “status quo” in the Order on Motion for Reconsideration, As set forth above, this motion is GRANTED IN PART with respect to footnote 3. The Court declines to further discuss the “status quo” and as to that request the motion is DENIED.

(3) Clarification of the upcoming status conference. The Tribes have also asked the Court to clarify the purpose of the upcoming status conference in this matter. The Court has requested the conference for the purpose of establishing procedures for resolving further disputes under Paragraph 9.2 of the Implementation Plan. The conference shall be limited to procedural issues. Accordingly, the Tribes’ Motion for Clarification of this matter is GRANTED. ORDER DENYING PETITION FOR REVIEW Subproceeding No. 89-3 (January 22, 2004) ROBERT S. LASNIK, District Judge.

This matter comes before the Court on the petition of the Tulalip Tribes, Swinomish Indian Tribal Community, and Upper Skagit Indian Tribe for review of United States Magistrate Judge Ricardo S. Martinez’ discussion of the Suquamish Tribe’s usual and accustomed fishing places in footnote 3 of his Order on Motion for a Temporary Restraining Order (Dkt. # 17563) and in the related Order on Motion for Reconsideration (Dkt. # 17601). The Court has authority to hear this petition for review pursuant to the Stipulation and Order Amending Shellfish Implementation Plan, Attachment A, ¶ 9.1.4 (Dkt. # 17340).

Shortly before filing this petition for review, the Tribes filed a motion to alter or amend the judgment before Judge Martinez. After considering the Tribes’ arguments and the cross-motion of the Su-quamish Tribe, Judge Martinez revised footnote 3 to clarify that his ruling does not amount to an adjudication of the Su-quamish Tribe’s usual and accustomed fishing places insofar as that determination had already been made in United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash.1978). See Order on Pending Motions (Dkt. # 17629).

Having reviewed the record that was before Judge Martinez and the arguments of the parties, the Court finds that revised footnote 3 accurately quotes pre-existing judicial determinations and that the information was appropriately included in the order because it was relevant to Judge Martinez’ denial of a temporary restraining order. Revised footnote 3 neither expands nor limits the geographic scope of the Suquamish Tribe’s usual and accustomed fishing grounds: it simply identifies one of the difficulties the Tribes faced when attempting to enforce the “status quo.” The petition for review is DENTED.

ORDER GRANTING SUQUAMISH TRIBE’S MOTION FOR A PRELIMINARY INJUNCTION Subproceeding No. 89-3-03 (May 18, 2004) RICARDO S. MARTINEZ, United States Magistrate Judge. This matter is before the Court for consideration of a Motion for Preliminary Injunction, under authority conferred by the Stipulation and Order Amending Shellfish Implementation Plan ¶ 9.1 (April 8, 2002). The Suquamish Tribe seeks a court Order enjoining the A & K Trust (“Trust”) or its designee from harvesting clams from property leased by the Trust at Erlands Point in Kitsap County, Washington.

The court heard oral argument on May 14, 2004, and accepted a supplemental memorandum on behalf of Puget Sound area shellfish growers, and a supplemental reply from the Tribe, Having fully considered the matter, the court now finds and rules as follows:

(1) The Suquamish Tribe’s motion for a preliminary injunction is GRANTED.

(2) The Trust (or anyone acting on its behalf) shall immediately cease the harvest of clams from the Erlands Point property.

(3) The Trust shall permit the Tribe, upon 24 hours notice, to survey the remaining clam populations on the Erlands Point property.

(4) The Trust shall document, by species and date, the quantities (if any) of shellfish that have been harvested from the Erlands Point property, and the quantities and value of each species of shellfish (if any) that have been sold from such harvest. The Trust shall provide this documentation to the Tribe and to this Court within seven days of the date of this Order.

(5) Neither the Trust nor anyone acting in its behalf may resume harvesting of clams on the Erlands Point property until further Order of this Court. The Trust may move for such Order after satisfying the Court that sections (3) and (4) above have been satisfied.

(6) In light of counsel’s statement at the hearing that no harvest of clams is currently underway, no security under F.R.Civ. Proc. 65(

c) is deemed necessary.

(7) A written memorandum on this decision shall follow within ten days, pursuant to § 9.2.5 of the Revised Shellfish Implementation Plan. MEMORANDUM ON ORDER GRANTING SUQUAMISH TRIBE’S MOTION FOR A PRELIMINARY INJUNCTION Subproceeding No. 89-3-03 (May 28, 2004) On May 18, 2004, the court granted the Suquamish Tribe’s motion for a preliminary injunction, enjoining the A & K Trust from harvesting clams from property at Erlands Point until further order of the court.

The court has jurisdiction to resolve this dispute under authority conferred by the Stipulation and Order Amending Shellfish Implementation Plan ¶ 9.1 (April 8, 2002) (“Implementation Plan”). Pursuant to § 9.2.5 of the Implementation Plan, the court now enters this memorandum stating reasons for granting the injunction.

(1) On April 28, 2004, the Suquamish Tribe filed a request for dispute resolution regarding the Tribe’s treaty right to harvest shellfish from tidelands at Erlands Point in Dyes Inlet, Kitsap County. The property is currently under lease to the A & K Trust (“the Trust”). Together with the request for dispute resolution, the Tribe filed a motion for a preliminary injunction to enjoin the Trust, or anyone acting on its behalf, from harvesting shellfish from Erlands Point tidelands until the Tribe has had an opportunity to survey and, if appropriate, harvest its treaty share.

The Trust opposes such survey and harvest on the grounds that the shellfish beds at Erlands Point are “staked and cultivated,” At the May 14, 2004 hearing on the motion, the Tribe’s request was narrowed to address clams at Erlands Point, not all shellfish. The findings and conclusions herein are thus specifically limited to clams.

(2) The dispute herein arises over the application of the so-called “Shellfish Proviso” in the Stevens Treaties. In 1855, the United States negotiated five Treaties with the Tribes of western Washington, at that time a territory. These treaties reserved to the Tribes the “right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory.” United States, et al. v. Washington, et al., 157 F.3d 630, 637 (9th Cir.1998).

With respect to shellfish, however, this right was limited by the Shellfish Proviso, which stated, “Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens.” Id. at 638. The parties are familiar with the extensive litigation spawned by the Treaty language, and with the principles of Treaty construction which were applied by the court in resolving the issues, The cases will thus be reviewed only to the extent necessary to resolve the current dispute, which evolves from the parties’ differing

interpretations of the term “staked and cultivated.”

(3) This court' addressed the Shellfish Proviso in a series of cases beginning in 1994, In Shellfish I, the court “interpreted the Treaties to award fifty percent of the shellfish harvest in Washington waters to the Tribes”, Id. at 641. That award, however, was subject to the limitations of the Shellfish Proviso. First, the court concluded that the Shellfish Proviso did not apply at all to natural or native shellfish beds.

Shellfish I, 873 F.Supp. at 1429, The court then interpreted the term “staked and cultivated by citizens” to describe “artificial shellfish beds created by private citizens,” including “the intervenor growers’ farms.” Id. at 1441. The court found that such artificial beds are not subject to Tribal treaty fishing, “except to the extent that natural clam beds may be sub-adjacent to the staked or cultivated shellfish beds.” Id. The court then held a six-day trial, the purpose of which was to receive evidence from which the parties. could develop a plan to implement Shellfish I.

(4) The implementation plan was incorporated into Shellfish II. The court defined a “natural bed” (that is, one which under Shellfish I could not be staked and cultivated) as one “which is capable of sustaining a yield of shellfish that will support a commercial livelihood.” 898 F.Supp. at 1460-61. The determination of that threshold amount was left to procedures set up in the Implementation Plan. Id.

The court noted that all parties agreed that “any shellfish beds created exclusively by the Growers’ efforts — ‘by scratch’, as it were” are clearly “staked and cultivated” within the meaning of the Shellfish Proviso. Id. at 1462. The court then applied equitable principles to include within the Shellfish Proviso (and exclude from Tribal harvest) natural beds which had been enhanced by the Growers’ efforts, Such as planting, seeding, or netting, and predator control. Id. at 1462. This portion of Shellfish II was reversed by the Ninth Circuit.

Noting the long-established principle that the terms of a treaty must be strictly construed in favor of the Tribes’ fishing rights, the appeals court ruled that the district court erred in using its equitable powers to modify the terms of the Treaties to exclude Growers’ beds from Tribal harvest. 157 F.3d at 642, 649-50.

(5) The district court in Shellfish II improperly broadened the definition of “cultivated” shellfish beds to include so-called “de facto artificial beds”, meaning natural shellfish beds that have been enhanced by human means. Id. at 650. Ruling that the Tribes could not be excluded from their ancient fisheries, but merely from taking an unfair share, the appeals court devised the following allocation scheme: (1) a shellfish bed on Grower’s property that existed “solely by virtue of the natural propagation of the species” — a “natural bed” — is subject to “a full fifty percent harvest allocation.” Id. at 652.

(2) Where a Grower has enhanced the natural production of a bed through cultivation efforts, the Tribal share is “fifty percent of the pre-enhanced sustainable shellfish production”. Id. at 653. For such enhanced natural beds, the burden is on the Growers to “demonstrate what portion of their harvest is due to their labor, as opposed to what portion would exist absent the Growers’ enhancement.” Id. Only that portion which is proven to be due to the Grower’s efforts is excluded from Tribal harvest. Id. at 653.

(3) Artificial beds, defined as “Grower beds that did not support a sustainable commercial density of shellfish prior to cultivation” are not subject to Tribal harvest at all. Id. The Ninth Circuit court remanded the matter for further proceedings consistent with the opinion. Pursuant to that remand, the court on April 5, 2002, approved the parties’ stipulation which created the Revised Shellfish Implementation Plan (“Implementation Plan”).

(6) The Suquamish Tribe initiated the dispute resolution process pursuant to § 9 of the Implementation Plan after the Tribe’s Treaty right to survey and harvest shellfish at Erlands Point was challenged by the Trust. Vivianne Barry, Shellfish Biologist for the Suquamish Tribe, gave notice on March 1, 2004, of the Tribe’s intent to survey and harvest the shellfish population at Erlands Point, Declaration of Paul Williams, attachment E. On March 7, 2004, the Tribe received the following response from Tal Price, Trustee of the A & K Trust: Dear Ms.

Barry: For your information, the tidelands referred to in your letter of 1 March 2004 (which I received in my Post office box on 4 March) are part of a licensed Aquatic (Shellfish) Farm (farms) and therefore are covered by the “staked and cultivated” beds provisions of US v. Washington, C70-9213. I would specifically direct your attention to subpro-ceeding No. 89-3 and subsequent orders.

As we have previously informed the Su-quamish Tribe, we will challenge any attempts to assert treaty rights over these shellfish beds and require the Su-quamish Tribe to comply with the provision of subproceeding 89-3 and subsequent orders. As you should know, you have no right to “inspect or survey” these shellfish beds absent a resolution of the “dispute resolution provisions of the Implementation Plan.” Sincerely, Tal Price, Trustee A & K Trust Declaration of Paul Williams, attachment F.

The Tribe then filed this request for dispute resolution, together with a motion for a preliminary injunction to prevent the Trust from harvesting any more clams before the Tribe’s Treaty share could be determined.

(7) At the hearing on the Tribe’s motion, the Trust argued that the shellfish beds at Erlands Point are staked and cultivated by a licensed grower, and that therefore the Tribe should have proceeded under § 6 of the Implementation Plan, rather than treating the Trust as a recreational property owner under § 7. The Trust also argued that the § 6.1 procedures for notice and determination of the Tribe’s share of commercial shellfish beds cannot be initiated at this time, because “Exhibit A” has not been completed.

Exhibit A is described in the Implementation Plan as “a chart showing the minimum density of commercial shellfish species needed to establish the existence of a natural bed ...” Implementation Plan § 6. The Plan contemplated that Exhibit A would be completed within six months of April 8, 2002. However, two years later it is still not complete, and the latest stipulation of the parties in Subproceeding 89-3-01 (the “density dispute”) requests a trial date after October of 2005 — more than a year away, Dkt. # 17637.

However, the Implementation Plan itself provides for the invocation of the dispute resolution process for “any disagreements remaining after six months [from April 8, 2002]” regarding, among other matters, “the natural bed threshold for any particular species, region and time interval ...” Implementation Plan, § 6. Therefore this dispute is properly before the court.

(8) From the record before the court, it appears that the Tribe properly proceeded under § 7 of the Implementation Plan. Although Mr. Price asserts that the Trust is a “licensed shellfish grower”, there is no evidence before the court to support that assertion with respect to the clam beds at Erlands Point. Mr. Price did not present, by testimony or by affidavit, any evidence specific to cultivation of clams at Erlands Point; his declaration regarding “seeding and cultching” with bags of oyster shells is not directed to any specific area and uses terms, relevant to oyster farming, not clam cultivation.

Nor did he present any evidence that either he or the A & K Trust possesses a license to cultivate clams at this site. There are several types of licenses and certificates issued to commercial shellfish growers by the State of Washington, The Department of Health issues site-specific certificates of approval for shellfish harvests pursuant to RCW 69.30.050. The Department of Health also issues annual shellfish operation licenses, required of “any person who possesses a commercial quantity of shellfish or any quantity of shellfish for sale for human consumption.” WAC 246-282-014; 246-282-990.

Both are required of “persons who conduct shellfish operations.” WAC 246-282-012. There is also a requirement for registration as an aquatic farm with the Department of Fish and Wildlife prior to beginning cultivation activities. WAC 220-76-020(1). Such registration must be renewed annually, and is not transferable. WAC 220-76-010(2), (3). While it was not possible for the Trust to obtain a harvest certificate prior to December of 2003, due to the pollution status of Dyes Inlet, there was no impediment to registration as an aquatic farm.

Indeed, the one document presented by the Trust to support its claim of being a licensed grower of clams at Erlands Point is an Aquatic Farm Registration Certificate purportedly issued to “A & K Trust” and dated January 31, 1996. Declaration of Tal Price, Exhibit C. The Tribe has produced a copy of the same document obtained from the Washington Department of Fish and Wildlife; it shows that the copy submitted by the Trust was altered to indicate only the Trust as holder of the registration, while in fact it was issued jointly to the A & K Trust and the Lindsay Beach Shellfish Company, owned by Thomas Pepper.

Declaration of Cory Al-bright, attachment 2(a), (b). There is no evidence of renewal by either the Trust, Mr. Price, the Lindsay Beach Shellfish Company, or Thomas Pepper. This document does not establish that the Trust was a licensed grower of clams at Erlands Point as of the effective date of the Implementation Plan, and it will not be considered further. Nowhere in the file is a copy of a shellfish operation license issued to the Trust, as described in WAC 246-282-014 and 246-282-990.

The only harvest site approval certificate for Erlands Point was issued to Chuck Dahman of Clam Acres on December 3, 2003, well after the effective date of the Implementation Plan. Declaration of Paul Williams, attachment B. As to the Intervenors’ argument that a Grower is anyone who cultivates shellfish, regardless of whether he or she possesses a license to do so, or registers as an aquatic farm, the court notes that this “activity based” argument was rejected by the court in Shellfish I.

The Growers offered in those proceedings a definition of “staked and cultivated beds” that included any bed that was “in some fashion improved by human labor.” 873 F.Supp. at 1431. The Ninth Circuit affirmed the district court’s rejection of the Growers’ proffered definition, finding the Growers’

interpretation “totally inconsistent with the ‘United States’ avowed intention to preserve for the Indians their ancient fisheries.’ ” 157 F.3d at 648. Further, Shellfish II specifically limited the application of the Implementation Plan procedures to “existing beds on property owned or leased by Growers licensed by the State of Washington.” 898 F.Supp. at 1461. While the Ninth Circuit reversed some aspects of Shellfish II, as noted above in ¶ 4, it did not alter the quoted limitation. 157 F.3d at 650.

This dispute resolution proceeding is not the place to enlarge the scope of the term “Grower” beyond that already defined by the court. Indeed, the Implementation Plan itself explicitly states that the “parties are bound by the

definitions prescribed by the Court” in Shellfish I, Shellfish II, and the decision of the Ninth Circuit. Implementation Plan, § 6. That means that § 6 can only apply to beds on property owned or leased by a Grower licensed by the State of Washington. There are strong public policy reasons For maintaining the requirement for a license; foremost among these is protection of public health.

Further, the courts’ application of the Shellfish Proviso is only meaningful if the Tribes have notice of its reach — in other words, if they can determine with some certainty who is a Grower and which beds are “staked and cultivated” as that term has been interpreted by the court and the parties in the Implementation Plan. It would impermissibly erode the carefully crafted provisions of the Implementation Plan if the Trust could claim Grower status on the basis of vague and unsupported allegations of unlicensed and unregistered cultivation activities.

Therefore, the court finds that there is no evidence to establish that, as of the date of the Implementation Plan, the clam beds at Erlands Point qualified as “existing beds on property owned or leased by Growers licensed by the State of Washington,” subject to the restrictions and procedures set forth in § 6.1 of the Implementation Plan. Accordingly, the Tribe may properly proceed under § 7 of the Implementation Plan in its request to survey and, if appropriate, harvest clams from Erlands Point. This ruling is limited to the unique and specific circumstances presented in this dispute.

(9) In order to obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits together with the possibility of irreparable harm, or (2) that serious questions are raised, and the balance of hardships tips sharply in favor of the moving party. Textile Unlimited, Inc. v. A. BMH Co., Inc., 240 F.3d 781, 786 (2001). Here, the Tribe has demonstrated a strong likelihood of success on the merits in this dispute.

It has also shown that continued harvest of clams by the Trust in defiance of the Tribe’s Treaty rights poses a threat of irreparable harm not only to the Tribe, but to the principles of treaty construction embodied in this case and the Implementation Plan: the Shellfish Proviso is an exception to the Tribes’ broad fishing rights, and as such must be strictly construed, 157 F.3d at 642, citing Sutherland on Statutory Construction, § 20.22 at 110 (5th ed.1992).

(10) Under the injunction issued on May 18, 2004, neither the Trust nor its designee Clam Acres may harvest any more clams at Erlands Point until further order of the court. Such order will issue upon a showing by the Trust that it has negotiated in good faith with the Tribe to ensure the proper exercise of the Tribe’s Treaty rights. Such negotiation shall take place according to § 7 of the Implementation Plan.

(11) The Trust moved at the May 14 hearing to strike the Tribe’s reply memorandum as overlength. This motion is DENIED, because the brief is not over-length. Local Rule CR 7(e)(3). ORDER ON MOTION FOR RECONSIDERATION Subproceeding No. 89-3-03 (June 10, 2004) The Court, having considered the A & K Trust’s Motion for Reconsideration, and the balance of the file, does now find and Order:

(1) Motions for reconsideration are disfavored, and are granted only with a showing of manifest error in the prior ruling, or a showing of new facts or legal authority which could not with reasonable diligence have been brought to the Court’s attention earlier. Local Rule CR 7(h)(1). The Trust has shown neither.

(2) Manifest error. The Trust argues that the Court’s limitation of

Section 6 of the Implementation Plan to Growers licensed by the State of Washington has no basis in law. That is not so. The Ninth Circuit Court of Appeals reversed the district court’s application of equitable principles to limit Tribal harvest from “existing beds on property owned or leased by Growers licensed by the State of Washington.” United States, et al. v. State of Washington, et al., 157 F.3d 630, 649 (9th Cir.1998). While it thereby altered the treatment of such beds under the Implementation Plan, it did not alter the district court’s actual definition of those beds.

Section 6 of the Implementation Plan, as noted in the prior Order, expressly maintains the “definitions prescribed by the Court” in the various shellfish cases. Such

definitions are an essential component of the Implementation Plan. The Trust has pointed to no other possible definition, in any of the relevant cases, than that set forth above.

(3) New Facts. In support of its claim to be a Grower licensed by the State of Washington, the Trust has presented oyster transfer permits issued to Tal Price in 1993 and 1995, for the transfer of oysters to Chico Bay. Even if the Court were to accept these permits as “new facts” which could not have been brought earlier with reasonable diligence, the Court declines to accept them as proof of the Trust’s status as a Grower licensed by the State of Washington to cultivate the clams at Erlands Point which are the subject of this dispute.

(4) Accordingly, the Trust’s Motion for Reconsideration is DENIED. The Court renews the prior caution that the findings and rulings herein are limited to the unique and specific circumstances of this dispute, and extend only to the clam beds on Trust property at Erlands Point. STIPULATION AND ORDER OF CONTINUANCE Subproceeding 03-1 (July 15, 2004) INTRODUCTION This stipulation to stay the proceeding is entered into between the United States, Hoh Tribe, and State of Washington.

As outlined below and explained in the parties’ July 1, 2004 Joint Progress Report, the Washington Department of Fish and Wildlife and the Hoh Tribe have tentatively reached agreement on a framework management plan for Hoh River Winter Steelhead for the 2004-2005 to 2006-2007 seasons. However, the plan is contingent on the Washington Fish and Wildlife Commission (“Commission”) adopting a rule in August 2004 allowing some retention of wild steelhead.

If the Commission adopts such a rule, the parties agree to stipulate to dismissing this subproceeding, without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(l)(ii) alter September 1, 2004. However, if the Commission bans retention of all steelhead, such an event will trigger the need to renegotiate the terms of the tentative framework agreement. In the mean time, the parties have reached an agreement regarding the 2004-2005 Hoh River Winter Steelhead fishery.

This season’s agreement contemplates two possible scenarios: the Commission allowing some nontreaty retention of wild steel-, head and the Commission prohibiting non-treaty retention of wild steelhead. The parties have agreed to possible fishing schedules, taking into consideration both possibilities. Because the parties have reached an agreement regarding this season’s fishery, there will be time to renegotiate the framework agreement should it be necessary to do so.

In the event the Commission prohibits retention of wild steelhead, the parties will endeavor to work cooperatively and in good faith to reach a final agreement by July 1, 2005. If no framework agreement has been reached by that date, the stay of this proceeding would end and a litigation

schedule as described below would resume. HOH INDIAN TRIBE WASHINGTON DEPARTMENT OF FISH AND WILDLIFE FRAMEWORK MANAGEMENT PLAN FOR HOH RIVER WINTER STEELHEAD (2004-2005 THROUGH 2006-2007 SEASONS) I. Introduction The Hoh Indian Tribe (Tribe) and the Washington Department of Fish and Wildlife (Department) have overlapping interests and jurisdictions relative to the management of Hoh River winter steel-head that creates the need for a co-management relationship.

The Tribe and the Department recognize that it is mutually beneficial to jointly develop management and harvest strategies designed to meet tribal and state fishery objectives. The Tribe and the Department seek to promote resource protection and annual fishery stability. The objective of this plan is to establish fisheries management principles by setting goals and objectives by which the Department and the Tribe will address conservation, harvest management, allocation, and enhancement issues.

It also allows the parties to put aside potential points of disagreement to the extent possible so that they can focus their efforts on improving future steelhead management in the Hoh River system. Such issues may include: the calculation of shares of wild and hatchery steelhead; foregone opportunity; non-harvest impacts of each fishery, and escapement management.

An important priority of this plan and future efforts is to restore and maintain the diversity and long-term productivity of Hoh River wild winter steelhead, In a manner consistent with this primary goal, the Hoh Tribe and the Department will seek to develop and manage fisheries to achieve cultural, economic, and recreational fishing benefits for the citizens of Washington State and members of the Hoh Tribe. The plan is intended to provide a level of certainty and stability for state and tribal fisheries.

The plan provides for tribal commercial, ceremonial and subsistence, and non-Indian recreational opportunity for catch and keep, and catch and release fisheries. Finally, the plan contains objectives for monitoring, evaluation, and enforcement. 1. Disclaimer The Parties do not claim that the provisions of this agreement necessarily address or strictly meet any of their respective

interpretations of the law or the application of legal principles which may otherwise be applied to the specific outstanding issues previously identified. The Parties’ objective in this agreement is to provide a three-year management framework, make progress on the technical issues raised and find information and common ground to reach future agreements. The applicable federal court orders under U.S. v. Washington shall apply to any Party’s activities not expressly provided for in this management plan, annual agreements, or any potential amendments to annual agreements or this plan.

No Party waives any rights, claims, appeals, or arguments by entering into this management plan. 2. Term This harvest management plan is effective when signed by both the Tribe and the Department. The term' of this plan is from the date of execution until May 1, 2007, or until superseded by a subsequent management plan signed by both Parties. 3. Escapement Goal The annual escapement goal for wild steelhead entering the Hoh River is 2,400 wild adults. The Parties agree to manage their fisheries to meet the wild spawning escapement goal.

Annual total allowable wild harvest equals the pre-season wild run size minus 2,400. There is no escapement goal for hatchery fish introduced into the Hoh River for harvest augmentation. Annual total allowable hatchery harvest equals the pre-season hatchery run size. 4. Management Objectives The Tribe and the Department will seek to develop and manage their steelhead fisheries to achieve cultural, economic, and recreational benefits consistent with the following: A. Maintain self-sustaining wild steel-head and their habitats at a healthy level. B.

Provide adequate enforcement of regulations that are designed to protect and conserve wild steelhead. This includes habitat protection and compliance with seasons, bag limits, catch reporting requirements, fishing area and gear restriction’s, and release of wild fish, as required. C. Non-treaty fishery goals and objectives: a. Provide full season fisheries from December 1 to April 15 (including ONP waters) b. Provide a mix of harvest and catch and release opportunities c. Provide quality fishing opportunity by having enough wild fish present to provide a meaningful fishery D.

Treaty fishery goals and objectives: a. Provide a minimum of a two day per week fishery from week 49— week 14 b. Accommodate Ceremonial and Subsistence needs c. Adjust fishing

schedule if extremely high river flow conditions cause the river to be completely unfishable for at least one full day E. Monitor and evaluate the health and diversity of wild steelhead and provide active effort and support for regulations to protect and fully recover habitat. 5.Accounting for Each Party’s Fishery Related Mortalities The parties agree to work together during the period of this agreement to evaluate fishery related mortalities for both treaty and non-treaty fisheries and how related estimates should be used in management. The primary categories that the Parties agree to assess are: A.

Non-landed mortalities associated with catch and release regulations, including: • The number of wild steelhead encountered and released, estimated through a Department administered, two-year creel census begun in 2003-2004; and • The associated number of released fish mortalities B. Mortalities associated with encounters with treaty and non-treaty fishing gear that are not subject to handling by fishers (e.g., those fish that drop off or out of gear); and C.

Mortalities associated with predation by marine mammals The Parties also agree to convene a technical work group to evaluate the interaction of the recreational fishery with spawning wild steelhead and potential associated mortalities that occur upstream of Morgan’s Crossing from April 1 through April 15. Following this technical review WDFW and Tribal policy representatives will meet to discuss the results and decide on an appropriate response, if any. These evaluations and discussions will be completed in 2004 no later than the respective technical and policy dates specified in Sections 8.E. and 8.F. below. 6.

Hatchery Augmentation The Tribe and the Department agree that the annual hatchery augmentation goal will be to release 100,000 smolts below the Highway 101 Bridge. The smolts released will be from the Cook Creek stock or as otherwise agreed. All smolts released will be marked with an adipose fin clip. There are no egg-take requirements for the returning adult hatchery steelhead. 7. Data Base Maintenance The Parties agree to maintain a joint database for computation of annual run sizes for both hatchery and wild steel-head runs.

These data will be used by the Parties to make pre-season forecasts of run strength, and harvest rates to guide annual harvest plans. The components of this database will be: Wild Run Size = tribal catch + sport catch + escapement Hatchery Run Size = tribal catch + sport catch + escapement The Parties also agree to seek the means to address priority run size, escapement and harvest impact assessment needs in order to maintain a complete joint database. 8.Annual Harvest Management Procedures and Dates A.

The annual harvest management procedures in Sections 8.B. and 8.C. and the associated harvest rates in Table 1 are contingent on the Fish and Wildlife Commission allowing retention of wild steelhead consistent with the management objectives contained within this plan. If retention of wild steelhead by the nontreaty fishery is prohibited, the Parties agree to revisit the provisions in Sections 8.B. and 8.C. B. Allowable wild steelhead mortality rates and associated fisheries will be based on a sliding scale dependent on forecasted wild steelhead abundance as shown in Table 1.

Each party will design its fishery to not exceed the mortality rates shown in the “Wild Treaty HR” and the “Wild Non-Treaty HR” columns. Wild harvest rates in Table 1 will apply to run sizes through 4,800. Wild harvest sharing at run sizes above 4,800 will be determined by agreement through the annual management planning process. C. Since the estimated sport fishery harvest rate is only based on one year, the 2004-2005 season will have similar regulations as 2008-2004, including provisions for wild fish retention, and be assumed to equal a 15% wild fish exploitation rate.

Subsequent seasons’ regulations may be changed, as necessary, if available estimates of recreational harvest rates warrant it. In addition, throughout the duration of this plan, recreational regulations for hatchery steelhead may be liberalized through week # 6. D. Tribal fishing schedules will be modeled using the rolling average of the wild harvest rates observed for the four most recent completed seasons. The tribe will identify a block of fish for ceremonial and subsistence needs that will be included in the tribal allowable exploitation rate. Adjustments may be made in the tribal commercial fishery

schedule if extremely high river flow conditions cause the river to be completely unfishable for at least one full day. These river flow conditions can occur several times during the winter fishing seasons. In most cases, make-up fishing days will be during the same week as the day lost.

However, in the rare instances when river height conditions prevent fishing days from being made-up in the same week, the days will be added in subsequent weeks, provided the resulting harvest rate docs not exceed the rate identified in Table 1 and the total number of fishing days in a week does not exceed the normally scheduled days plus one. The Tribe will notify the Department by telephone of its intent to make up a lost fishing day on the working day prior to an extension of the weekly period.

E.Technical information/agreement will be developed by Tribal and Department staff by November 10 each year and submitted to the policy representatives along with a written

summary of any unresolved issues to be decided by the parties’ policy representatives. Technical information for the preseason ran size forecasts for the coming season will be jointly agreed upon and the estimated spawning escapements for the previous winter steelhead season will be jointly agreed upon and this data will be added to the data base. Fishery impact models will be updated to include the most recent year’s catch and harvest rate data in order to project expected fishery impacts of proposed fishing schedules. F.

Policy representatives of the Hoh Tribe and the Department will meet no later than November 20 each year to reach agreement on each party’s fisheries for the coming season. The agreement shall be memorialized in an annual management plan signed by each party. If agreement is not reached at the first meeting, a second meeting of the policy representatives will occur no later than December 1 to resolve any outstanding issues. Neither party will authorize fishing beyond statistical week # 6, unless an agreement is reached or the disputed matters are resolved pursuant to

section 9. Absent an agreement, the Hoh Tribe will not authorize a fishery that exceeds three days per week through week # 6, and wild harvest rates for treaty and non-treaty fisheries will be limited to those rates defined in Table 1. G. In the event Sections 8B and

Section 8C are re-negotiated as provided in

Section 8.A., and if the Parties fail to reach agreement on revisions to these sections, the Tribe shall be allowed to conduct its 2004-05 fishery for two days per week through week # 12 and one day per week for weeks # 13 and # 14, or to fish to the wild treaty harvest rates allowed in Table 1, at the Tribe’s option. The non-treaty fishery shall be allowed to fish according to provisions contained in the 2004/2005 WDFW Sport Fishing Rules pamphlet, and recreational regulations for hatchery steelhead may be liberalized through week # 6. 9.

Dispute Resolution The Parties agree that disputes arising under this management plan will first be addressed cooperatively by policy representatives of both parties in a face-to-face meeting to avoid the need to resort to judicial or other third party dispute resolution mechanisms. The parties expect that this cooperative approach will resolve a majority of the issues. Absent resolution by the policy representatives, the dispute resolution process prescribed under U.S. v. Washington will be employed as follows unless otherwise agreed in writing.

Resolution of all technical issues associated with implementing the plan will utilize the Fisheries Advisory Board. Any unresolved policy disputes will be resolved pursuant to “Order Modifying Paragraph 25 of Permanent Injunction,” If renegotiation of Sections 8.B. and 8.C. is necessary, disputes arising in such context are not subject to this provision. However, if a new agreement is reached through renegotiation, any questions regarding its implementation would be resolved under this section. 10.

Changes to the Plan Changes to this framework plan must be made in writing and signed by policy representatives of both Parties. Table 1 — Hoh River Winter Wild Steelhead Harvest

Schedule and Expected Escapements 1/ Wild harvest rates at run sizes above 4,800 will be determined by agreement through the annual management planning process. 2/ Harvest rates at intermediate run sizes will be interpolated, accordingly. LITIGATION

SCHEDULE IN THE ABSENCE OF A MULTI-YEAR MANAGEMENT PLAN State to Supplement Interrogatory Responses July 8, 2005 All Parties May Review Documents Produced July 1-22, 2005 Exchange of Expert Reports and Disclosures July 29, 2005 Identification of Non-Expert Witnesses August 5, 2005 Exchange of Rebuttal Expert Reports and Disclosures August 26, 2005 Depositions Aug. 15-Sept. 12, 2005 Deadline for Filing Dispositive Motions September 16, 2005 State and Tribes Serve Pretrial Statements (CR 16(h)) October 3, 2005 State and Tribes Serve Responses to Pretrial Statements (CR 16(ij) October 7, 2005 Conference of Attorneys (CR 16(k)) October 28, 2005 Pretrial Order Lodged (CR 16(1)) November 4, 2005 Final Pretrial Conference (CR 16(m)) November 14, 2005 Trial To Be Set By Court Accordingly, the parties jointly request a stay of this proceeding until July 1, 2005 to permit, if necessary, the parties additional time for negotiation of a long term management plan that would remove the need for further litigation of the underlying issue.

ORDER IT IS HEREBY ORDERED THAT this subproceeding is stayed until July 1, 2005, on the terms set out in the above stipulation of the parties. If no long-term agreement has been reached by July 1, 2005, the litigation

schedule set out above in the stipulation of the parties shall go into effect without further order of this court. If a long-term agreement is achieved by July 1, 2005, the Court will sign an Order of Dismissal, without prejudice, pursuant to Fed.R.Civ.P. 42(a)(l)(ii). The parties will provide an update regarding this subpro-ceeding to the Court by July 1, 2005. ORDER DENYING MOTION FOR A TEMPORARY RESTRAINING ORDER Subproceeding 04-1 (July 16, 2004) This matter is before the Court on the Motion for a Temporary Restraining Order (TRO) filed by the Port Gamble S’Klal-lam and Jamestown S’Klallam Tribes (Tribes).

The Court, having reviewed the file and heard oral argument on the motion, finds that the Tribes have failed to show good cause why the Skokomish Tribe should be restrained from proceeding with the Hood Canal shrimp fishery under Regulation s04-84. Accordingly, the Motion for a TRO is DENIED. The Court acknowledges the good faith agreement of the Skokomish tribal council, made in open court, to set aside one thousand pounds of shrimp from the current harvest for the Tribes’ ceremonial needs.

The parties are urged to continue to negotiate in the spirit represented by the Sko-komish stipulation, illustrating the close inter-tribal relationship between the parties as set forth in the Hood Canal Agreement. Should such negotiations fail to achieve an agreement, the parties may jointly or individually file a Request for Determination and request the Court to appoint a settlement judge to aid in resolution of the issues by agreement rather than by further litigation.

STIPULATION AND ORDER OF DISMISSAL Subproceeding 03-1 (September 27, 2004) This stipulation of dismissal is entered into between all parties to United States v. Washington, Subproceeding No. 03-1. The parties reached an agreement outlined in the Stipulation and Order of Continuance signed by the Court on July 13, 2004. As explained in that stipulation, the framework management plan for the Hoh River Winter Steelhead for the 2004-2005 to 2006-2007 seasons was made contingent upon the Washington Fish and Wildlife Commission (“Commission”) adopting a rule allowing some retention of wild steel-head.

On September 2, 2004 the Commission adopted such a rule. As a result, the contingency for the framework management plan has been met, providing enough certainty for the next three seasons that the parties have agreed to dismiss this subproceeding without prejudice. ORDER IT IS HEREBY ORDERED that United States v. Washington, Subproceeding No. 03-1 is dismissed without prejudice. ORDER GRANTING SUQUAMISH TRIBE’S MOTION FOR

SUMMARY JUDGMENT RE: A & K TRUST Subproceeding No. 89-3-03 (Shellfish) (March 21, 2005) This matter comes before the Court on the Suquamish Tribe’s Motion for

Summary Judgment Re: A & K Trust. The Court has considered the papers submitted and the oral arguments presented by the parties. The Court hereby GRANTS the Suquamish Tribe’s Motion for

Summary Judgment Re: A & K Trust. The Court hereby ORDERS as follows: 1. The Tribe shall have the opportunity to immediately harvest its treaty share of the harvestable biomass of clams present on the Trust’s Erlands Point property— 50,463 pounds of manila clams and 13,335 pounds of native littleneck clams — in compliance with

section 7.2 of the Revised Shellfish Implementation Plan. The Tribe shall inform the Trust and WDFW of the dates that it will harvest as soon as practical. 2. The Trust, or anyone acting on its behalf or in concert with it, shall not harvest any clams from the Trust’s Erlands Point property until the Tribe has completed the harvest of its allocation or until five months have elapsed from the date of the Court’s order, whichever comes first. The Tribe shall promptly notify the Trust when it has completed the harvest of its allocation. 3. The clerk is directed to enter judgment accordingly.

ORDER ON MOTION OF CERTAIN TRIBES TO ADOPT AN INTERIM HALIBUT COMMERCIAL FISHERY MANAGEMENT PLAN Subproceeding No. 91-1 (May 3, 2005) This matter is before the Court for consideration of a motion by certain named tribes to adopt an interim plan for the 2005 commercial halibut fishing season. The motion was filed by nine of the tribes having an interest in the halibut fishery, namely the Jamestown, Lower Elwha, and Port Gamble S’Klallam Tribes, the Makah Tribe, the Lummi Nation, the Quinault Tribe, the Suquamish Tribe, Swinomish Tribal Community, and the Tulalip Tribes.

In the motion, filed just days before the opening of the 2005 commercial halibut fishery, these Tribes ask the Court to adopt their proposed 2005 interim management plan, provided no other Tribes objected. The Quileute Indian Tribe filed a response to the motion, asking that the Court not adopt the 2005 plan. On March 21, 2005, the Monday following the March 18 noting date for the motion, the Hoh Indian Tribe filed a declaration which the Court construes as an objection. By this time the 2005 halibut season was well underway. Accordingly, the Court declines to adopt the proposed interim management plan.

Instead, a hearing shall be held to address the issues raised in the moving Tribes’ motion, to assess their effect on the current halibut season, and to develop a plan to avoid a recurrence of this dispute in the 2006 season. The hearing is set on the Court’s calendar for Thursday, June 2 at 1:30 pm. The Tribes who are parties to this subproceeding may file pre-hearing memoranda, including any suggestions for avoiding recurrence, on or before Friday, May 27, 2005.

ORDER ON PENDING MOTIONS (September 6, 2005) Subproceeding No. 05-3 This matter is before the Court for consideration of the motion to dismiss filed by the Suquamish Tribe (“Suquamish”) and a motion for leave to file a cross-request for determination by the Swinomish Indian Tribal Community (“Swinomish”). The Court has reviewed the motions, the responses and replies, and relevant case documents. For the reasons set forth below, the Court now DENIES the motion to dismiss, and GRANTS the motion for leave to file a cross-request for determination. I.

Motion to Dismiss In 1974, in language that lies at the heart of the current dispute, the Honorable George Boldt described the usual and accustomed fishing grounds (“U & A”) of the Suquamish as follows: The usual and accustomed fishing places of the Suquamish Tribe include the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal. United States v. Washington, 459 F.Supp. 1020, 1049 (1978).

A dispute has arisen among several Tribes concerning whether this language includes certain areas on the east side of Whidbey Island. This request for determination (“Request”) was filed by the Upper Skagit Indian Tribe (“Upper Skagit”), who ask the Court to determine that certain defined areas of Saratoga Passage and Skagit Bay are not within the Suquamish U & A as defined by Judge Boldt. The Suquamish have moved to dismiss the Request for lack of jurisdiction and failure to state a claim, as well as under the doctrine of res judicata.

They argue that their U & A has been specifically determined, and that the Court does not now have jurisdiction under the permanent injunction in this case to alter or amend that determination. They also assert that the Request fails to allege any cognizable legal theory justifying relief. None of these arguments is persuasive.

Under Paragraph 25 of the permanent injunction in this case, as modified August 23, 1993, this Court retains jurisdiction to consider “[w]hether or not the actions intended or effected by any party ... are in conformity with Final Decision # I or this injunction.; ...” The Request alleges that the Suquamish have been fishing for crab in certain areas on the east side of Whid-bey Island that are within the Upper Skagit’s own U & A, and that this action is not in conformity with Judge Boldt’s determination of the Suquamish U & A because this area is not included within Puget Sound as Judge Boldt intended that term This Court therefore has jurisdiction under Paragraph 25 to consider this Request.

The Court agrees with Suquamish that the U & A determination is a final decision that cannot now be altered or amended. It may, however, be clarified, as this Court has done on several prior occasions where Tribes have disagreed on the reach of the term “Puget Sound” as used by Judge Boldt in his various U & A determinations. Muckleshoot Indian Tribe, et al. v. Lummi, 141 F.3d 1355 (9th Cir.1998) (“Muckleshoot I”), Puyallup Indian Tribe, et al. v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir.2000) (‘Muckleshoot III”).

Indeed, The Suquamish have themselves complained of the “maddening imprecision and inconsistency with which the Court, the parties, the witnesses, and the exhibits in this case have used the phrase ‘Puget Sound.’” Brief of Appellees in Muckleshoot III, Dkt. # 25, Exhibit A. As there is sufficient ambiguity in Judge Boldt’s use of the term “Puget Sound” in describing the Suquamish U & A to require clarification, and there is at present a live controversy between the parties because of that ambiguity, the motion to dismiss the Request is DENIED. II.

Motion for Leave to File a Cross-Request for Determination The Swinomish have filed a motion for leave to file a cross-request for determination, pursuant to Paragraph 25(b)(4) of the permanent injunction. They assert that the term “Puget Sound” as used by Judge Boldt in describing the U & A of the Suquamish requires clarification, and they ask for a determination that certain waters on the east side of Whidbey Island were not included in that determination.

The Suquamish, in response, contend that the cross-request is not ripe because the Swi-nomish did not follow the pre-litigation “meet and confer” procedures set forth in Paragraph 25. However, under Paragraph 25(b)(4), no specific requirement for a meet and confer is imposed upon a party seeking to file a cross-request. Instead, the party must seek leave of Court, which the Swinomish have done. While cross-requests are discouraged and leave to file them may often be denied, this case presents circumstances in which the cross-request is deemed appropriate.

A clarification of the term “Puget Sound” in the Suquamish U & A will affect the Swinomish as it will the Upper Skagit. The Swi-nomish motion for leave to file a cross-request for determination is accordingly GRANTED. III. Motion to Strike. In their reply on the motion to dismiss, the Suquamish move to strike the declaration of Barbara Lane, attached to the Upper Skagit’s response to the motion to dismiss. The Suquamish contend that it is a conflict of interest for Dr. Lane to represent an opposing party and testify against her own testimony. Dr.

Lane according to her declaration, however, prepared and submitted reports on all tribes except the Yakima. In order for there to be a conflict of interest the Suquamish must establish they had a confidential relationship with Dr. Lane. Wyatt By and Through Rawlins v. Hanan, 871 F.Supp. 415 (M.D.Ala.1994). The Suquamish do not claim there is one, nor does it appear likely this is the case given Dr. Lane’s work with almost all the Tribes in U.S. v. Washington. The Suquamish further argue that the declaration should be stricken because it is latter-day testimony that is inadmissible under Muckleshoot I.

The Court agrees. The Ninth Circuit Court of Appeals held that the only relevant evidence in this type of subproceeding is what was before Judge Boldt at the time of his decision. Muckleshoot I, 141 F.3d at 1359. Accordingly, the motion to strike the Declaration of Barbara Lane is GRANTED. IV. Motion for

Summary Judgment and Motion to Strike. The Upper Skagit filed a motion for

summary judgment which was ripe for determination on September 2, 2005. The Suquamish, in response, moved to strike that motion as premature. As a determination on the merits of this matter will require the submission by the parties, and review by the Court, of evidence that was before Judge Boldt some thirty years ago, and that evidence has yet to be presented, the Court finds that the

summary judgment motion is indeed premature. Accordingly, the Suquamish motion to strike (Dkt. # 40) is GRANTED, and the Upper Skagit motion for

summary judgment (Dkt.- # 22) is STRICKEN, without prejudice to re-filing at the proper time. The Clerk shall now issue an Order directing the filing of a Joint Status Report. ORDER ON MOTION FOR RECONSIDERATION Subproceeding 05-01 (October 21, 2005) The Skokomish Indian Tribe (“Skokomish”) has moved for reconsideration of the Court’s July 20, 2005 Order on the parties’ cross-motions for

summary judgment on all claims. Such motions are disfavored and will be denied in the absence of “a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier.... ” Local Rule CR 7(h)(1). The Court finds that the Skokomish motion has failed to meet this standard, except in one area as set forth below.

First, the Skokomish assert that the Court overlooked catch data which showed that they did not regulate S’Klallam fishing, because the S’Klallam actually caught more crab and geoduck than did the Sko-komish. “In light of this catch data, it is inconceivable that the Skokomish letters amount to an ‘exercise’ of its ‘primary right’ ‘against’ the S’Klallams.” Motion for Reconsideration, p. 4.

This argument overlooks the language of the Hood Canal Agreement, in which the Skokomish agreed not to “exercise or seek to exercise” its primary right against the S’Klal-lam or other stipulating Tribes in Hood Canal north of Ayock Point. United States v. Washington, 626 F.Supp. 1405, 1469 (W.D.Wash.1985) (emphasis added). It was the Court’s ruling that the Skokomish sought to regulate other Tribes’ fishing by issuing unilateral harvest plans and quotas for the other Tribes, and that such attempt to regulate constituted a violation of the Hood Canal Agreement.

The actual amounts subsequently harvested are irrelevant to that determination. Next, the Skokomish assert that the Court “misapprehended” the effect of letters written by the Skokomish Tribe to other Tribes, and argue that “it is manifestly improper for the Court to grant

summary judgment by relying on eviden-tiary matters to which the Skokomish Tribe had no notice were at issue.” Motion for Reconsideration, p. 8. The Sko-komish by this argument refer to the Court’s finding that these letters, with their accusations of bad faith, constituted an assertion of social disapproval. Social disapproval and magical retaliation were previously found by the Court, Judge Boldt presiding, to be the primary methods by which the Twana, as aboriginal predecessors of the Skokomish, regulated fishing by other Tribes in their own fishing grounds. Id. at 1491.

There was no lack of notice on this issue; it was the Skokomish Tribe that itself put the tribal methods of fishing regulation at issue by contending that such regulation of other Tribes’ fishing required an exercise of police powers, or the imposition of time, place or manner restrictions. In rejecting that argument, the Court referred back to Judge Boldt’s earlier language to find that regulation could be accomplished by means other than physical force. Only if “the other deterrents proved inadequate” would the Twana have responded with physical force. Id.

As to magical retaliation, it should have been clear that the Court was not serious in suggesting, in a footnote, that threats of litigation might be the modern-day equivalent. The Court finds no basis for reconsidering its ruling in this area. The third argument put forth by the Skokomish is that the Court “Misapprehended the Requested Relief As Nothing in the Hood Canal Agreement ... Supports a Declaration of an “In-Common” Fishing area.” Motion for Reconsideration, p. 9.

The Court did not “misapprehend” the relief requested by the S’Klallam Tribes; the Request for Determination clearly asked for a declaration that the area of Hood Canal north of Ayock Point be designated an “in-common” management area. Request for Determination, p. 10.

Nor does the designation of the area as an “in-common” management area conflict with the language of the Hood Canal Agreement, which states that in this area “the Sko-komish and the Klallam Bands may exercise their respective treaty fishing rights without any limitation or control whatsoever ... except as the stipulating parties may mutually agree by compact or otherwise.” U.S. v. Washington, 626 F.Supp. at 1469 (emphasis added). However, the Court notes that the S’Klallam did not actually include this aspect of the Request for Determination in the motion for

summary judgment. See, Motion for

Summary Judgment, Dkt. # 141; Proposed Order, Dkt. # 147. That portion of the Order declaring the area north of Ayock Point ■an “in-common” management area shall therefore be stricken. Finally, the Skokomish assert that “the Court Misapprehended the Language of the Hood Canal Agreement” by stating at page 7, lines 20-21 that “the Skokomish may not exercise [their] primary right against the S’Klallam” It is the Skokomish position that this language, by omitting reference to the area north of Ayock Point, changes the meaning of the Hood Canal Agreement. That is not so.

The omission of the limiting language “north of Ayock Point” did not write it out of the Hood Canal Agreement; that language was implicit in the Court’s statement even though not expressly quoted. Similarly, as to the Court’s discussion of “consent”, the Sko-komish argue that the Court “has turned the Agreement on its head by shifting the authority to grant consent from the Sko-komish Tribe to the Two S’Klallam Tribes.” Motion for Reconsideration, p. 12. That is not the case.

The Court’s use of the word “consent” on page 6 was linked to previously-quoted language in the Hood Canal Agreement in which the Skokomish agreed that ‘it will not, under any condition or for any reason whatsoever, exercise or seek to exercise its primary right on Hood Canal north of Ayock Point ... against any of the other stipulating parties without its or their express consent.’ Order on Cross-Motions for

Summary Judgment, p. 2, quoting U.S. v. Washington, 626 F.Supp. at 1469. Contrary to the Skokomish argument, this language clearly requires the consent of the S’Klallam Tribes before the Skokomish can exercise their primary right north of Ayock Rock. By referring to this “consent”, the Court did not, in the words of the Skokomish, turn the Hood Canal Agreement “on its head.” Plaintiffs motion for reconsideration is accordingly GRANTED IN PART and DENIED IN PART. The Court STRIKES that portion of the Order declaring “that the area north of Ayock Point is an ‘in common’ management area....” Order on Cross-Motions for

Summary Judgment, p. 8. The Court declines to further modify or reconsider the Order. ORDER ON MOTION TO DISMISS Subproceeding No. 05-4 (October 27, 2005) This matter is before the Court for consideration of the motion to dismiss filed by the Suquamish Tribe (“Suquamish”). The Court has reviewed the motion, the response and replies, and relevant case documents. For the reasons set forth below, the Court now GRANTS the motion to dismiss.

DISCUSSION This is the second Request for Determination filed this year concerning the extent of the usual and accustomed fishing grounds (“U & A”) of the Suquamish, described by the Honorable George Boldt in 1974 as follows: The usual and accustomed fishing places of the Suquamish Tribe include the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal. United States v. Washington, 459 F.Supp. 1020, 1049 (1978).

In June, 2005, two months before this subproceeding was initiated, the Upper Skagit Indian Tribe (“Upper Skagit”) filed a Request for Determination (“Request”) asking the Court to determine that certain defined areas of Saratoga Passage and Skagit Bay, both to the east of Whidbey Island, are not within the Suquamish U & A as defined by Judge Boldt. U.S. v. Washington, Cause No. 70-9218, sub-proceeding 05-03.

The Swinomish Indian Tribal Community (“Swinomish”) moved for leave to file a Cross-Request for Determination to include a larger portion of Saratoga Passage, known as Catch Reporting Area 24C, and the motion was granted. The Suquamish then moved to dismiss the Request for lack of jurisdiction and failure to state a claim, as well as under the doctrine of res judicata. The Court found in sub-proceeding 05-OS that it retained jurisdiction under Paragraph 25 of the permanent injunction in this case, as modified August 23, 1993, to consider the Request of the Skagit and Swinomish.

And although the Court noted its agreement with Suquamish that the U & A determination is a final decision that cannot now be altered or amended, it found that it may be clarified where necessary. Without specifically finding that the term “Puget Sound” is ambiguous in the context of the Suquamish U & A, the Court found sufficient ambiguity in Judge Boldt’s use of the term “Puget Sound” in this case to allow that sub-proceeding to go forward. The Court therefore denied the motion to dismiss.

This Request for Determination was filed as sub-proceeding 05-04 by the Tu-lalip Tribes (“Tulalip”), who ask the Court to find that all of Saratoga Passage, together with additional areas designated as Perm Cove, Holmes Harbor, Port Susan, Tulalip Bay, Port Gardner, a portion of Possession Sound, and the east side of Admiralty Inlet, including Admiralty Bay, Mutiny Bay, Useless Bay, and Cultus Bay, all lie outside the Suquamish U & A as defined by Judge Boldt.

The Suquamish have moved to dismiss the Request, this time asserting three bases for dismissal: lack of subject matter jurisdiction, res ju-dicata, and laches. The Tulalip, in response, have asked the Court to follow the ruling in sub-proceeding 05-03 and deny the motion to dismiss. There are, however, significant differences between the positions of the parties in the two sub-proceedings, which here compel a different result. In 1974 or 1975, the Tulalip Tribes filed a Request for Determination as to their own U & A.

Judge Boldt noted that the areas claimed by the Tulalip as usual and accustomed fishing grounds included

(1) All marine waters of the State of Washington lying within the lands and waters ceded to the United States of America by

Article I of the treaty of Point Elliot.

(3) All marine waters of Puget Sound and of the Strait of Juan de Fuca lying within the territorial limits of the State of Washington and outside of those waters ceded to the United States of America by

Article I of the treaty of Point Elliot. U.S. v. Washington, 459 F.Supp. at 1058. Judge Boldt issued provisional findings limiting the Tulalip U & A to a clearly defined area, described as “[bjeginning at Admiralty Head on Whidbey Island and proceeding south ...thence southeasterly, northeasterly, and northwesterly up to a line “drawn true west of Camano on Camano Island.” Id. at 1059. This was a provisional finding, and various Tribes, including the Suquamish, entered into negotiations with the Tulalip Tribe for final determination of the Tulalip U & A.

In 1983, the Suquamish, Muckleshoot, and Tulalip Tribes entered into a stipulated settlement which resolved “some of the issues raised in the Tulalip Tribes’ request for final determination_” Su-quamish Reply, Dkt. # 13, Exhibit 2. That stipulation was filed with and approved by the Court, Judge Craig presiding, in 1983. U.S. v. Washington, 626 F.Supp. 1405, 1476-78 (W.D.Wash.1985). Subsequently, in 1985, Judge Craig issued a final decision as to the U & A of the Tulalip Tribe, the extent of which is not directly relevant to these proceedings. Id. at 1527-1532.

Notably, however, Judge Craig referred at several points to the stipulated settlement agreements reached with the Suquamish and Muckleshoot Tribes, as well as eight other Tribes. Id., Finding of Fact ¶ 383, Conclusions of Law ¶¶ 94, 100, 101, 102. The Court stated, Pursuant to those agreements the stipulating tribes, with a single limited exception, did not participate in the adversarial proceedings of this dispute and thus had no opportunity to present evidence of their own, to cross-examine Tulalip witnesses or to challenge Tulalip evidence.

Some of the evidence offered by the Tulalip Tribes dealt with activities, persons or events in areas which are of concern to the stipulating tribes. It should therefore be stressed that the findings of fact and conclusions of law which are adopted in this proceeding are not to be cited or relied' upon in any manner against or to the prejudice of the stipulating tribes in this or any other judicial or other proceeding, provided that this shall not prevent the independent establishment of the same fact or conclusion in a future proceeding. Id., Finding of Fact ¶ 383.

In May of 1985, the Suquamish filed a new Request for Determination seeking to establish their right to fish in certain areas as successors to the treaty-time Duwamish Tribe. The Court, after referring the matter to a Special Master for trial, denied the Request, and that denial was affirmed on appeal. U.S. v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir.1990).

The appeals court, in setting forth the background of the dispute, variously used the terms “eastern Puget Sound”, “eastern side of Puget Sound”, and “east of Puget Sound” apparently interchangeably, and also referred to the Suquamish U & A area as “western Puget Sound” and “the west side of Puget Sound” without actually defining those areas. These vague references to “eastern” and “western” Puget Sound appear to form part of the basis for the Tulalip’s Request here.

The Court notes, however, that when describing the actual usual and accustomed fishing grounds of the Duwamish “on the eastern side of Puget Sound”, the appeals court stated that they “included, but were not limited to, Lake Washington, Lake Union, Lake Sam-mamish, the Black and Cedar Rivers, and the lower White or Duwamish River...” U.S. v. Suquamish Indian Tribe, 901 F.2d 772, 774 n. 2 (9th Cir.1990).

The Court has described these prior proceedings with some particularity, because each of them provides some basis for finding that the Tulalip’s Request for Determination is either barred or untimely, and must be dismissed.

In the initial proceedings on their Request for Determination before Judge Boldt in 1975, the Tulalip Tribe claimed as their usual and accustomed fishing areas “[a]ll marine waters of Puget Sound and of the Strait of Juan de Fuca lying within the territorial limits of the State of Washington,” together with “[a]ll marine waters of the State of Washington lying within the lands and waters ceded to the United States of America....” U.S. v. Washington, 459 F.Supp. at 1058.

Significantly absent from this claim is any separate reference to Saratoga Passage, Port Susan, Skagit Bay, or any of the other areas near the Tulalip Indian Reservation which the Tulalip now contend are not within “Puget Sound” as Judge Boldt used that term in describing the Suquamish U & A. Thus, the Tulalip claim in 1975 to a U & A in “all marine waters of Puget Sound” must necessarily have included those very areas to the east of Whidbey Island which they now assert are excluded.

In other words, they are now arguing for a limitation on the term “Puget Sound” which is inconsistent with their 1975 claim This is impermissible, particularly in the context of this case. The doctrine of judicial estoppel, sometimes referred to as the doctrine of preclusion of inconsistent positions, may be invoked to prevent a party from changing its position over the course of judicial proceedings. Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990). It is an equitable doctrine invoked by the Court at its discretion. Yanez v. United States, 989 F.2d 323, 326 (9th Cir.1993).

Judicial estoppel applies to a party’s stated position, whether that be an expression of intention, a statement of fact, or a legal assertion. Wagner v. Professional Engineers in California Government, 354 F.3d 1036, 1044 (9th Cir.2004). The purpose of the doctrine is to protect the integrity of the judicial process. Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597, 601 (9th Cir.1996); quoting Yanez v. U.S., 989 F.2d at 326.

Although it appears that this doctrine may well apply to the inconsistent positions taken by the Tulalip Tribe on the extent of “Puget Sound” here, the Court declines to apply judicial estoppel to bar this Request at this time because it has been raised on the Court’s own motion, and the Tulalip have not been given an opportunity to respond.

However, the Court deems it unnecessary to delay the proceedings to allow such opportunity, because the Request is subject to dismissal on other grounds asserted by the Suquamish Specifically, the Court agrees with the Suquamish that this Request is barred by the doctrines of laches and res judicata. “Res judicata, also known as claim preclusion, bars litigation in a subsequent action of any claims that were raised or could have been raised in the prior action.” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.2001); quoting Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir.1998).

The doctrine is applicable when there is (1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between the parties. Id. These requirements are met here. Res judicata applies to the Judge Boldt’s 1975 rulings on the Suquamish U & A, Judge Craig’s 1985 ruling on the Tulalip U & A, and to the 1983 stipulated settlement between the Su-quamish and the Tulalip, which resolved overlapping claims to some of the areas now in dispute. That settlement was incorporated into a judgment which conclusively determined the issues as between these two parties. U.S. v.

Washington, 626 F.Supp. at 1476-78. To any extent that the Tulalip claim that the Suquamish U & A did not include certain areas on either side of Whidbey Island as asserted here, they could and should have raised that issue and resolved it in the 1975 proceedings and /or the 1983 settlement. It would seriously impact the finality of those judgments to allow them to re-open the issue now. Finally, to the extent that the Tulalip argue that the Ninth Circuit’s 1990 language regarding eastern and western Puget Sound in U.S. v.

Suquamish Indian Tribe somehow limited the Suquamish U & A to the boundaries asserted here, they are barred from asserting that claim by the doctrine of laches. “Laches is an equitable time limitation on a party’s right to bring suit.” Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 835 (9th Cir.2002) (quoting Boone v. Mech. Specialties Co., 609 F.2d 956, 958 (9th Cir.1979)). A party asserting laches must show that it suffered prejudice as a result of the plaintiffs unreasonable delay in bringing suit. Id., citing Couveau v. American Airlines, Inc., 218 F.3d 1078, 1083 (9th Cir.2000).

The fifteen years that have passed since the Ninth Circuit’s language provided fuel for the Tulalip “eastern Puget Sound” argument constitute unreasonable delay. The Suquamish have been prejudiced by this delay, in that they have been intimidated from fishing in certain areas, with no judicial resolution of the dispute. See, Declaration of Robert Purser. In opposing the Suquamish laches argument, the Tulalip assert that laches should not be applied in a “continuing jurisdiction” case such as this. No legal authority is offered for this proposition, and the Court rejects it.

While the Court did and does retain jurisdiction to hear and determine certain claims in this case, as set forth in Paragraph 25 of the Permanent Injunction, all applicable legal and equitable doctrines still apply to claims within that jurisdiction. Accordingly, the Suquamish motion to dismiss is GRANTED, and this Request for Determination is DISMISSED.

To the extent that this ruling differs from the ruling issued in Subproceeding 05-03, that difference is compelled, as noted above, by the prior history of these two parties, and by the additional argument of laches asserted by the Suquamish in this subpro-ceeding. ORDER ON MOTION TO COMPEL Subproceeding No. 05-3 (December 19, 2005) This matter is before the Court for consideration of the motion to compel filed by the Upper Skagit Indian Tribe (“Upper Skagit”). The motion has been opposed by the Suquamish Tribe (“Suquamish”). For the reasons set forth below, this motion is DENIED.

DISCUSSION This subproceeding was initiated by the Upper Skagit as a Request for Determination under Paragraph 25 of the permanent injunction herein. The Upper Skagit asked the Court to find that certain defined areas of Saratoga Passage and Skagit Bay, described as the “Subproceed-ing Area”, are not within the usual and accustomed fishing area (“U & A”) of the Suquamish as it

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