--- F.Supp.3d ----, 2015 WL 687339 (W.D.Wash.)

(Cite as: 2015 WL 687339 (W.D.Wash.))


Only the Westlaw citation is currently available.

United States District Court, W.D. Washington, at Seattle.

UNITED STATES of America, et al., Plaintiffs,


State of WASHINGTON, et al., Defendants.

No. C70-9213RSM.

Subproceeding No. 09-01.

Signed Feb. 18, 2015.


RICARDO S. MARTINEZ, District Judge.

*1 This matter comes before the Court on Motion for Partial Summary Judgment by
Petitioner Makah Indian Tribe (the "Makah") (Dkt.# 248), Motion for Summary
Judgment by Respondents Quileute Indian Tribe (the "Quileute") and Quinault Indian
Nation (the "Quinault") (Dkt.# 251), as well as Motion to Define the Burden of
Proof by the Quileute and Quinault (Dkt.# 283). Both dispositive motions concern
the application of equitable defenses in this subproceeding, specifically whether
Makah's claims are barred by laches, judicial estoppel, and acquiescence. The
Court deems oral argument unnecessary, having fully considered the extensive
evidentiary record submitted by the parties, including the parties' moving papers,
attached declarations and exhibits, briefs filed by the numerous participating
Interested Parties, and the remainder of the record in this subproceeding. Being
fully apprised, the Court grants partial summary judgment on behalf of the
Petitioner and denies Respondents' summary judgment motion. The Court further
denies in part and defers in part Respondents' motion to define the burden of
proof in this subproceeding.


The Makah initiated this subproceeding by filing a Request for Determination on
December 4, 2009, seeking the Court's determination of the Quileute and Quinault's
Pacific Ocean usual and accustomed fishing grounds ("U & A"). Dkt. # 1, P 4. In
particular, the Makah assert that the western boundary of the Quileute and
Quinault U & A "appears to be approximately 5 to 10 miles offshore." Id. at P
3(c)(ix). If the Makah are correct, the Quileute and Quinault have been conducting
fisheries for salmon, halibut, and blackcod outside their U & A, as well as
asserting intentions to enter the Pacific Whiting fishery beyond their U & A's
western boundary. This subproceeding is brought under Paragraph 25(a)(6) of Final
Decision # 1, pursuant to which the Court exercises jurisdiction to determine the
location of any of a tribe's U & A's not specifically determined by Judge Boldt in
Final Decision # 1. U.S. v. Washington, 384 F.Supp. 312, 419 (W.D.Wash.1974) (
"Final Decision # 1" ). Bench trial in this matter is scheduled to commence March
2, 2015.

While the procedural history of this subproceeding is well known to the parties
and shall not be repeated here, a rough recitation of the underlying events and
prior related subproceedings is necessary to set forth the factual predicate of
the Court's rulings herein. When this case was initiated over 40 years ago, the
case area was limited to waters within the jurisdiction of the State of
Washington. Final Decision # 1, 384 F.Supp. at 400. The case area has since
expanded as, among other developments, the Makah requested an adjudication of
their own Pacific Ocean U & A, which the Court determined extends approximately 40
miles offshore. See U.S. v. Washington, 626 F.Supp. 1405, 1467 (W.D.Wash.1985),
aff'd 730 F.2d 1314. While the Quileute and Quinault have moved in the past to
limit the Makah's ocean fisheries, they have not moved for a similar adjudication
of their own asserted ocean U & A's. See id. at 1471.

(1) Federal Regulatory Boundaries

*2 The Pacific Ocean customary fishing grounds of the Quileute and Quinault
have, however, been implicated in prior federal regulation. The Magnuson Fishery
Conservation Management Act, 16 U.S.C. s 1801 et seq., vests authority in federal
regulatory agencies to issue fishery management regulations consistent with the
provisions of the Act and other applicable law. See 16 U.S.C. ss 1853-1855.
Pursuant to the Act, in 1986, the National Oceanic and Atmospheric Administration
("NOAA") adopted western boundaries for the Quinault and Quileute ocean fishing
areas for the purpose of describing Subarea 2A-1, the tribal area for halibut
fishing. 51 Fed.Reg. 16471 (May 2, 1986). The regulations provide that Subarea
2A-1 "is not intended to describe precisely the historic off-reservation halibut
fishing places of all tribes, as the location of those places has [not] been
determined" and that the boundaries of a tribe's fishery within the Subarea "may
be revised as ordered by a Federal court." Id.; see Dkt. # 58, Ex. J, pp. 2, 4.

The Quileute and Hoh Tribes, joined by the Quinault, shortly thereafter
submitted a comment letter on the Halibut rule, in which they contested the legal
basis for the western boundaries of their ocean fishing areas delineated by NOAA,
asserting that "[n]o court, and no agreement, has ever established a western
boundary for our treaty fishing areas." See Dkt. # 58, Ex. A, p. 2; see also Ex. B
(letter from Quinault joining in the Quileute and Hoh Tribes' concerns). The
Regional Director of the National Marine Fisheries Service ("NMFS") responded by
inviting the Quileute, Quinault, and Hoh to submit information to justify a
modification of the regulations. Id. at Ex. C.

The Quileute again contested the delineated western boundary for the tribes
after the Halibut boundaries were incorporated into salmon fishing regulations in
1987. See id. at Ex. D (comment letter from Quileute to NMFS); 52 Fed.Reg. 17264
(May 6, 1987). The NMFS Assistant Administrator for Fisheries responded by noting
that the Tribes had not answered NMFS's 1986 request for information concerning
the tribes' historic boundaries and again solicited information. Id. at Ex. E.

NMFS included the same boundaries in its 1996 framework rule for the
establishment of tribal groundwater fisheries. 61 Fed.Reg. 28786, 28789 (June 6,
1996); see Dkt. # 58, Ex. L. The rules' preamble explains the rationale behind it,
as well as its limitations:

Under this rule, NMFS recognizes the same U & A areas that have been implemented
in Federal salmon and halibut regulations for a number of years. The States and
the Quileute point out that the western boundary has only been adjudicated for
the Makah tribe. NMFS agrees. NMFS, however, in establishing ocean management
areas, has taken the adjudicated western boundary for the Makah tribe, and
extended it south as the western boundary for the other three ocean tribes. NMFS
believes this is a reasonable accommodation of the tribal fishing rights, absent
more specific guidance from a court. NMFS regulations, including this
regulation, contain the notation that the boundaries of the U & A may be revised
by order of the court.

*3 Id. In the response to comments, the agency agreed with the Quinault that
"this rule is without prejudice to proceedings in United States v. Washington. As
stated above, NMFS will modify the boundaries in the regulation consistent with
orders of the federal court." Id. at p. 9.

(2) The Halibut Litigation

Subarea 2A-1 became the subject of further dispute when the Makah filed suit in
1985 against the Secretary of Commerce under the Administrative Procedure Act (the
"APA") seeking judicial review of the Secretary's regulations setting harvestable
fishing quotas for halibut between treaty and non-treaty fishermen. See Makah
Indian Tribe v. Mosbacher, C851606. In 1992, the Mosbacher court ruled on cross
motions for partial summary judgment that the threshold issues in the case
concerning the nature and extent of the Makah's treaty right to take halibut had
to be resolved in the context of the continuing jurisdiction of the U.S. v.
Washington court, and accordingly transferred the proceeding into the instant
case. See Dkt. # 248-2-248-5 ("Joner Decl."), Exs. K & L. The Makah then initiated
Subproceeding 92-1, seeking confirmation of their previously adjudicated U & A and
their treaty right to take halibut. See id. at Ex. M, pp. 1-2.

Makah subsequently moved for preliminary injunction in Moshbacher, seeking to
prevent the Secretary from allocating less than 35% of the total allowable catch
of halibut in the larger Area 2A to the Subarea 2A-1 Indian treaty fishery. The
Makah argued that the Secretary's halibut regulations set forth the fishing areas
of each of eleven tribes in addition to the Makah within Subarea 2A-1, and that
these regulations had never been challenged by the States of Washington or Oregon.
See Id. at Ex. Q, pp. 14-15 (citing 50 CFR 301.5(c), 301.19 (1992). The Makah
further argued on reply, responding to opposition from the State intervenors, that
because Mosbacher was an APA case, Washington had the burden to prove that the
regulations were arbitrary, capricious, or an abuse of discretion, which it had
not done. The Makah also asserted that "substantial evidence" supported the
Secretary's determination on tribal treaty rights in the Subarea. Id. at Ex. R,
pp. 4-5.

Following consolidation of Mosbacher and Subproceeding 92-1, the Court entered
an order on multiple pending motions, including the Makah's request for
preliminary injunctive relief. Noting that several tribes had joined in the
Makah's request for determination, Magistrate Judge Weinberg recommended that the
Court find that only "[t]he issue of the Makah's treaty rights is properly before
the Court." Id. at Ex. U, pp. 9-10 (explaining that "no tribe other than the Makah
has filed a request for determination, or has specifically moved for a ruling
seeking such relief. Nor has any other tribe made a timely and complete
evidentiary showing comparable to that made by the Makahs."). As to tribes other
than the Makah, Judge Weinberg recommended that "the determinations of the
responsible agency are binding upon the parties unless and until there has been a
timely application for review to a court with jurisdiction to hear it." Id. at p.

*4 Judge Rothstein adopted Judge Weinberg's recommendation regarding judicial
confirmation of the Makah's treaty right to fish for halibut and its U & A for
halibut, and reached a similar confirmation for four of the eleven Subareas 2A-1
tribes' treaty rights for halibut fishing purposes. Id. at Ex. U, pp. 2-5. The
Court made no such ruling for the Quileute, Quinault, or Hoh. The Court also
confirmed that, in formulating its allocation decisions, the Secretary is
obligated to accord treaty fisherman the opportunity to take 50% of the
harvestable surplus of halibut in their U & A's. Id. at p. 56.

(3) Negotiated Management Plans

Although the Makah supported the Quileute and Quinault's asserted customary
ocean fishing grounds in Mosbacher, see, e.g., Dkt. # 252 (King Decl.), Ex. G, the
relations between the tribes regarding their respective ocean fisheries have not
always been congenial. Previous to the instant dispute, however, the tribes were
able to achieve negotiated ocean management plans with limited intervention by the
Court. See, e.g., Ocean Compact Subproceeding 81-2.

For instance, in 1996, the Quinault, Makah, and Hoh filed an RFD asserting that
the Quileute's use of highly efficient pot gear threatened to preempt the Makah
and Quinault's longline fisheries for blackcod. See Joiner Decl. at Ex. X.
Previous to filing, the Makah had threatened the Quileute that failure to resolve
the dispute would lead them to challenge Quileute's fishing beyond the western
boundary of its previously adjudicated U & A. Id. at Ex. X, p. 3. The Quileute
responded that a "Makah attack on the Quileute ocean U & A would result in
irreparable damage to the relations between the costal tribes." Id. at Ex. Z, p.
1. The RFD ultimately filed asserted that the Quileute were fishing beyond their
adjudicated north and south boundaries but did not specifically challenge
Quileute's western boundary.

The parties entered into a 1997 settlement agreement, which memorialized the
tribes' accord not to challenge any other tribe's right to fish in marine fishing
areas during the term of the agreement. Id. at Ex. BB (Ex. A, p. 3). The agreement
purported not to represent any parties' view with respect to usual and accustomed
fishing areas and provided that it was "without prejudice to the parties'
respective claims regarding usual and accustomed fishing places." Id. at pp. 3-4.
The agreement terminated in 2001, upon which the tribes entered into a series of
new agreements for management of the treaty blackcod fishery. The 2001, 2003,
2005, and 2006 agreements provided a similar limitation that they do not
"necessarily represent the view of any Party with respect to ... the Parties'
usual and accustomed fishing areas." Id. at Ex. DD-GG.

(4) Whiting Dispute

The instant dispute arose following the Quileute and Quinault's assertions of
intent to enter the Makah's valuable Pacific whiting fishery. The Makah have been
fishing Pacific whiting in their adjudicated U & A since 1995 under allocations
determined by NMFS. See Midwater Trawlers Cooperative v. Dept. of Commerce, 393
F.3d 994 (9th Cir.2004). The Quinault and Quileute notified NMFS of their intent
to enter the whiting fishery on January 10 and April 4, 2008, respectively. Dkt. #
126, Exs. A & D. The Quileute stated that one or more of its members would enter
the fishery commencing in 2009 and that it was "not presently requesting an
increase in the whiting allocation to all coastal tribes." Id. at Ex. A. The
Quinault stated that its entry into the fishery "may occur as early as 2009" but
did not make any allocation request. Id. at Ex. D.

*5 In response, Makah's Chairman McCarty proposed that the Quinault and
Quileute seek allocations from NMFS on top of the 17.5% allocation being requested
by the Makah, which McCarty stipulated did not represent the full treaty
entitlement in the whiting fishery. Id. at Ex. F. McCarty expressed concern with
the proposal that the Quinault and Quileute fish under the Makah allocation, as it
would disrupt the Makah's established treaty fishery and hinder its efforts to
manage bycatch, in accordance with NMFS requirements. At the same time, McCarty
informed the tribes that the Makah "will continue to support [ ] your requests for
allocations to support your fisheries." Id.

Quileute Chairperson Hatch promptly rejected the proposal for separate
allocations: "To be clear the Quileute Tribe rejects and will not accept any
proposal which purports to limit its right to catch from the total 'tribal'
whiting allocation announced annually by NMFS." Id. at Ex. G. Chairperson Hatch
took the position that NMFS whiting allocations provided for harvest by all tribes
collectively, and that NMFS lacked the authority to determine intertribal
allocations. Id. Throughout meetings over the next several months with the
Northwest Indian Fisheries Commission ("NWIFC"), the Makah continued to advocate
for allocation of separate tribal shares, and the Quileute and Quinault continued
to reject separate harvest guidelines.FN1

NMFS issued a proposed rule for 2009-1010 harvest specifications in the whiting
fishery on December 31, 2008, in which it adopted the proposal of the Pacific
Fisheries Management Council to create a total tribal allocation of 50,000mt,
42,000mt of which would be managed by the Makah and 8,000mt of which would be
managed by the Quileute. The proposed regulation provided:

These interim individual Tribal set-asides for 2009 only are not in any manner
to be considered a determination of treaty rights to the harvest of Pacific
whiting for use in future fishing seasons, nor do they set precedent for
individual Tribal allocations of the Pacific whiting resource: the amounts being
set aside for each tribe for 2009 are based on the timely requests from the
tribes at the June Council meeting.

50 CFR s 660; Dkt. # 126, Ex. S. In its final March 2009 rulemaking, NMFS
explained that the set-asides were driven by concerns that the absence of
individual tribal allocations could lead to a race for fish with deleterious
impacts on bycatch management:

Without clear management targets for each tribe, a race for fish may occur as
whiting migrate from south to north, reaching the Quileute [U & A] before they
reach the Makah U & A. A race for fish could result in excessive bycatch of
overfished species, and the closure of other groundfish fisheries.

Id. at Ex. U, p. 25. In acknowledgment that fishing rights of the treaty tribes
are determined under U.S. v. Washington, NMFS emphasized that its set-asides do
not represent "formal allocations, nor do they create precedent for future years."
Id. The rule also provided that NOAA "does not intend to allocate the total tribal
whiting allocation to the individual tribes" in the future, and that it would
consider initiating litigation should the tribes fail to reach consensus amongst
themselves as to intertribal allocation. Id. at p. 26. The Makah initiated the
instant subproceeding following the tribes' failure to reach any such negotiated

(5) Instant Motions

*6 The Makah's motion for partial summary judgment, as well as the Quinault and
Quileute's motion for summary judgment seek the Court's determination as to the
availability of certain equitable defenses in this subproceeding. The Court
previously rejected the Quinault and Quileute's laches argument as grounds for
dismissal, noting that Respondents had at that stage failed to allege sufficient
facts with respect to delay or injury for the Court to apply this equitable
doctrine. Dkt. # 84, p. 4. The Court also noted that the tribes' laches defense is
"incompatible" with their simultaneous defense that this dispute is not yet ripe
for consideration. Id. In the parties' Joint Status Report filed October 1, 2013,
the Quileute and Quinault reiterated their intention to pursue through discovery
and dispositive motion "a defense that Makah's claims for relief are barred under
the doctrines of laches and estoppel." Dkt. # 248, p. 3. The Quileute and Quinault
clarify in their response to the Makah's motion and through their own dispositive
motion that their asserted affirmative defenses include laches, judicial estoppel,
and acquiescence. See Dkt. # 274, p. 2 n. 1; Dkt. # 251. The Quinault and Quileute
additionally invoke a sovereign immunity defense twice rejected by this Court and
currently on appeal before the Ninth Circuit. See, e.g., Dkt.86, 171, 183, 185.

Also before the Court is the Quinault and Quileute's motion to define the
burden of proof in this subproceeding. These tribes contend that the Makah must
carry the burden of proof as the petitioning party. As to the standard of proof,
the Quileute and Quinault contend that the APA arbitrary and capricious standard
applies. If the Court finds that the Quileute and Quinault bear the burden of
proof, Respondents assert that they should be held to a lower standard than the
normal civil standard of preponderance of the evidence. The Makah and Interested
Parties oppose the Quinault and Quileute's suggestions, arguing that the burden of
proof rests with the tribes whose U & A is at issue and that these tribes should
be held to the ordinary preponderance of the evidence standard. The instant Order
addresses all pending motions.


I. Availability of Equitable Defenses

As an initial matter, the Makah, joined by the Interested Parties the Tulalip,
Swinomish, and S'Klallam Tribes (see Dkt. # 275) contend that equitable defenses
such as laches, acquiescence, and equitable estoppel are unavailable for U & A
adjudications under U.S. v. Washington. These tribes draw this rule from then
presiding Judge Coyle's February 15, 1990 decision on cross motions for summary
judgment in Subproceeding 89-2, in which the court was asked by several requesting
tribes to determine the extent of the Lummi Tribe's adjudicated U & A based on
evidence before Judge Boldt. See U.S. v. Washinton 18 F.Supp.3d 1123, 1155
(W.D.Wash.1990) ("Coyle Order" ) Asked to determine whether a tribe can be
prevented from challenging a U & A by laches, waiver, or equitable estoppel, Judge
Coyle held that "[t]here is no question that these equitable defenses may not be
invoked by non-Indians to defeat Indian treaty rights." Id. at 1163 (citing Swim
v. Bergland, 696 F.2d 712, 718 (9th Cir.1983)); see also U.S. v. Washington, 157
F.3d 630, 649 (9th Cir.1998) (reiterating the principle that equitable defenses
cannot be used to defeat Indian treaty rights). Judge Coyle adopted the requesting
tribes' concerns that allowing for equitable defenses would promote circumvention
of the procedures set forth in Paragraph 25 for adjudicating U & A's and encourage
tribes to expand their established fishing areas through the exercise of
prescriptive rights:

*7 If equitable defenses are available to a tribe that engages in treaty fishing
outside its established area, there will be a great incentive for tribes to
issue regulations for areas outside their established usual and accustomed
fishing grounds and to allow or encourage tribal members to engage in treaty
fishing outside those areas in anticipation of being able to enlarge the tribe's
treaty rights by 'prescription.'... There is neither enough time nor resources
to prevent a potential dilution of a tribe's treaty right by these 'equitable
means' for it would mean constant court filings-most on an emergency basis.

Id. at 1164.

The Court agrees with the S'Klallam that the concerns recognized by this Court
two and a half decades ago are no less present in this subproceeding. It remains
the case that allowing for equitable defenses could very well have the unfortunate
consequence of compelling treaty tribes to flood the Court with requests for
immediate adjudication of disputes for fear of losing fishing rights through
prescription. At the same time, the efforts of tribes to informally resolve
intertribal grievances without Court intervention would be sorely undermined.

The Quinault and Quileute nonetheless assert that Judge Coyle's holding is no
longer the law of the case, having been unsettled by subsequent decisions within
and without U.S. v. Washington. The Quinault and Quileute point out that the Ninth
Circuit held that Judge Coyle's 1990 decision was not final because no separate
judgment had been entered. U.S. v. Lummi Indian Tribe, 235 F.3d 443, 447-48 (9th
Cir.2000). They also point to a vacated decision in Subproceeding 05-04, in which
the Court ruled that all applicable legal and equitable doctrines apply to
proceedings under its continuing jurisdiction, and held that laches barred the
Tulalip Tribe's request for clarification of the Suquamish U & A. 20 F.Supp.3d
777, 805-06 (W.D.Wash.2004). On remand from the Ninth Circuit, the Court
determined that equitable defenses including laches and estoppel "require a
factual analysis which is not appropriate on a motion to dismiss," 20 F.Supp.3d
899, 937, a conclusion similar to that reached by the Court in this subproceeding
on the Quileute and Quinault's earlier motion to dismiss. See Dkt. # 86. Finally,
the Quileute and Quinault argue that Judge Coyle's legal analysis has been eroded
by the Supreme Court's decision in City of Sherrill, N.Y. v. Oneida Nation of
N.Y., 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005), and the Ninth
Circuit's decision in Apache Survival Coalition v. U.S., 21 F.3d 895 (9th
Cir.1994), both of which found tribal land claims to be barred by laches.

Needless to say, the status of equitable defenses in U & A adjudications is in
a fairly uncertain state. While this Court has reached equitable defenses in
suproceedings since Judge Coyle's decision, it has done so without fully resolving
their availability. For instance, although the Court resolved the laches claim on
its merits on summary judgment in Suproceeding 05-04, it cautioned that in doing
so its order should not be read as reviving its earlier vacated determination as
to the availability of equitable defenses. U.S. v. Washington, 20 F.Supp.3d 986,
1044 n. 5 (W.D.Wash.2013); see also Suproceeding 01-02, 20 F.Supp.3d 899
(W.D.Wash.2008) (ruling on "unclean hands" equitable defense to Rule 60(b) motion
and declining to reach the question of estoppel).

*8 The Court also does not find Sherrill and Apache to be controlling on this
issue, as the former involved an assertion of tribal authority over land some 200
years after the state began exercising sovereign control and the latter was
brought under the National Historical Preservation Act and involved no claim of
tribal treaty rights. By contrast, the laches defense in the instant case at most
raises a delay of some three and one-half decades. During this period, the
Quileute and Quinault were fully aware of the Makah's contestation of their
western boundary, but the tribes were generally able to keep their disputes out of
court through informal means of negotiation. Furthermore, the unique nature of the
U.S. v. Washington case places the burden foremost on each tribe to fully and
finally resolve its usual and accustomed fishing places through the mechanism that
Judge Boldt put in place. See Coyle Order, 18 F.Supp.3d at 1165. As such, this
matter raises neither the extraordinarily lengthy period of delay nor the
disruption of settled, justifiable expectations at issue in Sherrill. See Oneida
Nation v. County of Oneida, 617 F.3d 114, 127 (2d. Cir.2010) (distinguishing
Sherrill laches from traditional laches).

The Court notes that it has before it an unusual subproceeding, both in that it
was initiated, like Subproceeding 89-2, by a tribe seeking adjudication of another
tribe's U & A and in that it requires determination of a fishing grounds that was
not finally adjudicated by Judge Boldt. Both of these features evoke concerns
raised by Judge Coyle about the prospect that allowing for equitable defenses
could lead to a system in which unadjudicated tribal U & A's are determined
through prescription rather than through the orderly judicial management
contemplated by Paragraph 25. While the Court declines to hold that equitable
defenses are never available in a Paragraph 25(a)(6) subproceeding, it reiterates
the long-held understanding that they do not apply in the typical fashion in this
case. The Court further determines that the Respondents' equitable defenses are
unavailing on their merits.

A. Judicial Estoppel

The doctrine of judicial estoppel codifies the rule that "where a party assumes
a certain position in a legal proceeding, and succeeds in maintaining that
position, he may not thereafter, simply because his interests have changed, assume
a contrary position, especially if it be to the prejudice of the party who has
acquiesced in the position formerly taken by him." New Hampshire v. Maine, 532
U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (internal quotation
omitted). The New Hampshire Court identified three factors that typically inform
the decision whether to apply judicial estoppel. First, "a party's later position
must be 'clearly inconsistent' with its earlier position." Id. at 750 (internal
quotation omitted). Second, the party must have "succeeded in persuading a court
to accept that party's earlier position, so that judicial acceptance of an
inconsistent position in a later proceeding would create the perception that
either the first or the second court was misled." Id. (internal quotation
omitted). Finally, the court considers whether "the party seeking to assert an
inconsistent position would derive an unfair advantage or impose an unfair
determinant on the opposing party if not estopped." Id. at 751.

*9 The Court agrees with the Makah that none of these factors are present here.
The Quileute and Quinault fail to point to any positions advanced by the Makah
that are clearly inconsistent with those taken in this subproceeding. While
Respondents point to the Makah's expressions of support for their customary ocean
fishing grounds in Mosbacher and Subproceeding 92-1, the Court does not find any
obvious inconsistency with the Makah's positions in this subproceeding. In the
former, a challenge brought under the APA, the Makah had argued that federal
regulations recognizing tribal rights to take halibut were controlling where
supported by substantial evidence and not properly challenged by the State of
Washington. The Makah's position that federal regulations are binding until
appropriately challenged or revised in accordance with a decision by this Court is
not inconsistent with its request for adjudication of the Quileute and Quinault U
& A's here based on a de novo determination on a full evidentiary record. Further,
the Makah's statements that substantial evidence supported the Secretary's
determination pertained to the rights of 12 tribes fishing in Subarea 2A-1, not
the Quinault and Quileute specifically.

Even if there was an inconsistency in the Makah's assertion that "substantial
evidence" supported the Secretary's determination, the Makah's position was never
adopted by the Court. To the contrary, the Court only determined that federal
regulatory boundaries governed the halibut fishery until properly challenged. The
Court specifically declined to address the treaty rights of any tribe other than
the Makah, the S'Klallam Tribes, and the Skokomish Tribe. See Joner Decl. Decl. at
Exs. U & W. In declining to consider treaty fishing rights of tribes other than
the Makah, Judge Weinberg explained:

no tribe other than the Makahs has filed a request for determination, or has
specifically moved for a ruling seeking such relief. Nor has any other tribe
made a timely and complete evidentiary showing comparable that made that by the
Makahs. In short, no other tribe has presented the issue to the court in a
manner which might warrant the granting of relief on the pending motions.

The Court's decision implicitly contemplated that those other tribes, including
the Quileute and Quinault, would initiate proceedings under this case to seek
clarification of their treaty fishing rights as had the Makah. Id. at Ex. U, pp.
9-10. The Quileute and Quinault accordingly fail to show that this or any other
Court relied on any inconsistent statement by the Makah so as to pose a threat to
judicial integrity. See Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782
(9th Cir.2001) ("This Court has restricted the application of judicial estoppel to
cases where the court relied on, or 'accepted,' the party's previous inconsistent

Finally, the Quileute and Quinault fail to show that the Makah have received an
unfair advantage as a result of any prior inconsistent position. As the Makah
point out, any benefit they received from an increased total treaty allocation has
always been offset by the need to share the increase with other tribes. This
Court's determination as to Quileute and Quinault's western boundaries in this
subproceeding does not dictate federal allocations of harvestable fish. Whichever
side prevails before this Court, the total halibut allocations will be adjusted
accordingly. The Court is not unsympathetic to the Quinault and Quileute's
concerns as to the waste of resources that would attend a decision by this Court
foreclosing their ocean fisheries. At the same time, it must be recognized that
any prior support by the Makah of the Quileute and Quinault's customary ocean
fishing grounds has primarily been to Respondents' benefit, allowing them to
expand their fisheries in waters to which they may or may not have a right and to
reap the resulting economic rewards. For all these reasons, the Court finds that
judicial estoppel is not a defense available to the Quileute and Quinault in this

B. Laches

*10 The Court finds Respondents' laches defense similarly unavailing. "Laches
is an equitable defense that prevents a plaintiff, who, with full knowledge of the
facts, acquiesces in a transaction and sleeps on his rights." Danjaq LLC v. Sony
Corp., 263 F.3d 942, 950-51 (9th Cir.2001) (internal quotation omitted). A prima
facie case for laches requires a two-fold showing of (1) unreasonable delay by the
plaintiff in bringing suit and (2) prejudice to the defendant caused by the delay.
See Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 621
F.3d 981, 989 (9th Cir.2010); see also Kansas v. Colorado, 514 U.S. 673, 687, 115
S.Ct. 1733, 131 L.Ed.2d 759 (1995). The first prong of the test entails assessment
of the length of the delay as well as the reasonableness of the delay. Seller
Agency Council, 621 F.3d at 989.

The Court finds the Respondents' failure to make a showing under the first
prong dispositive of their laches defense in this case. Far from sleeping on their
rights, the Makah actively worked with the Quinault and Quileute since the 1980's
to obtain amicably negotiated solutions to conflicts over their respective ocean
fisheries, all the while preserving their right to seek adjudication in this Court
should informal methods of dispute resolution reach an impasse. The express
language in the blackcod agreements from 1997 onward supports the Makah's argument
that the tribes preserved their right to asserts claims and defenses should formal
adjudication become necessary. See, e.g., Joner Decl. at Ex. BB (providing that
the 1997 agreement was "without prejudice to the parties' respective claims
regarding usual and accustomed fishing areas"). There was nothing unreasonable in
the Makah's decision to decline to investigate the western boundary of the
Quileute and Quinault U & A and to wait to bring the issue to the Court for
resolution until negotiated pathways broke down with the whiting dispute. The
Court is unwilling to punish a tribe for attempting to solve intertribal issues
intertribally and without judicial intervention, a pathway oft encouraged by the

Indeed, as set forth above, Respondents' laches proposition would essentially
turn the longstanding adjudication system established in this four-decade case on
its head. As Judge Coyle explained, the onus is on each of the tribes to "finally
resolve their usual and accustomed fishing places as soon as possible. This has
nothing to do with equitable defenses. It has to do with the expeditious
utilization of a mechanism that has been in place since the Boldt decision was
issued." Coyle Order, 18 F.Supp.3d at 1165. Just as the Makah did decades ago, the
Quileute and Quinault have had ample opportunity to submit evidence of their
customary fishing grounds to the Court, seeking settlement of their ocean U & A's
once and for all. The Court is unwilling to reinforce a tribe's decision to evade
Paragraph 25 mechanisms, only to assert a U & A entitlement without the
requirement imposed on every other tribe in this case to show that it is supported
by the evidence.

C. Acquiescence

*11 The Ninth Circuit's test for acquiescence is substantially similar to its
test for laches, with the exception that it requires affirmative words or deeds by
a party conveying implied consent to another. See Seller Agency Council, 621 F.3d
at 988. The elements of a prima facie case for acquiescence are: "(1) the senior
user actively represented that it would not assert a right or a claim; (2) the
delay between the active representation and assertion of the right or claim was
not excusable; and (3) the delay caused the defendant undue prejudice." Id. at

The Quileute and Quinault have identified no actionable representations by the
Makah sufficient to meet the first element. The sole affirmative representation
pointed to by Respondents is the Makah's assertion in Mosbacher that the federal
regulations for Subarea 2A-1 were "not taken from whole cloth" but were instead
supported by "substantial evidence." See Dkt. # 279, p. 14. These statements are
insufficient to give rise to an acquiescence defense for several reasons. First,
considered in their appropriate context, these statements were made as part of the
Makah's argument that substantial evidence supported federal halibut regulations.
The Makah did not thereby affirmatively represent that the Quileute and Quinault,
or any other tribe fishing in the Subarea, had established their ocean U & A's,
but only sought to counter the State of Washington's contention that the tribes
bore the initial burden to prove that they had treaty rights and to prove that the
federal regulations correctly depicted their U & A's.

These statements also do not imply that the Makah would not assert their right
to seek adjudication of Quileute and Quinault U & A's through the proper channels
in the future. To the contrary, in response to R & R objections by the State of
Washington, the Makah stated that they "agree[d] fully with Washington that, in a
proper judicial proceeding to determine the ... usual and accustomed fishing
grounds of any tribe ... the Court must apply the treaty-right principles
articulated in United States v. Washington." Joner Decl., Ex. V at pp. 7-8. The
Makah further emphasized that if federal regulations were inconsistent with tribal
rights, as adjudicated previously or "in further proceedings" in U.S. v.
Washington, the regulations would be invalid under the APA. Given these and other
such counterbalancing statements, any inference that the Makah affirmatively
represented that they would not seek adjudication of the western boundary of
Respondents' U & A is far too attenuated to support a viable acquiesence defense.
Any such inference is further undermined by the Makah's express retention of the
right to seek formal adjudication if negotiated management solutions reached an
impasse and by their threat to put the Quileute's western boundary before the
Court during the blackcod dispute. See Joiner Decl. at Ex. X.

Even if these statements were actionable, the Court does not find that the
Quileute and Quinault could reasonably have relied on them, knowing the purpose
for which they were uttered during the halibut litigation and in light of the
Makah's retention of their rights thereafter. See Seller Agency Council, 621 F.3d
at 990 ("[P]rejudice in the context of acquiescence inherently must involve
reliance on the senior user's affirmative act or deed, and such reliance must be
reasonable."). Indeed, it appears that the tribes have not relied on them, as
evidenced by the Quinault's letter to NMFS in February 2014 acknowledging that the
"[b]oundaries of a tribe's fishing area may be revised as ordered by a federal
court." Joner Decl. at Ex. G. As set forth above, the Court also declines to find
that the Makah unreasonably delayed in waiting to initiate this subproceeding
until the tribes reached an actual impasse in their ability to achieve negotiated
fishery management solutions.

*12 The Quileute and Quinault ask the Court to allow them to explore their
equitable defenses further at trial should the Court decline to bar the Makah's
request on summary judgment. The Court finds no reason to do so.FN2 The Quileute
and Quinault are unable to carry their burden to make a sufficient showing of
multiple elements on each of these affirmative equitable defenses. With all
inferences from underlying facts viewed in their favor, Respondents fail to
identify any genuine issue of material fact that prevents the Court's resolution
of their equitable defenses as a matter of law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d
538 (1986). Accordingly, partial summary judgment as to the Quileute and
Quinault's equitable defenses shall be granted in the Makah's favor.

II. Burden and Standard of Proof

Also pending before the Court is the Quinault and Quileute's motion to define
the burden of proof in this subproceeding. Dkt. # 283. As an initial matter, the
Court grants the Makah's request through its surreply to strike arguments and
exhibits in support thereof raised for the first time by Respondents on reply. See
Dkt. # 295. "As a general rule, a 'movant may not raise new facts or arguments in
his reply brief' " as doing so "essentially prevents [the nonmoving party] from
providing any response." Karpenski v. Am. Gen. Life Cos., 999 F.Supp.2d 1218,
1226-27 (W.D.Wash.2014). In this instance, the Quinault and Quileute argue for the
first time in their reply brief that it is the law of the case that "non-fish
species such as shellfish and sea mammals are included in the Stevens Treaty
fishing provision." Dkt. # 290 at p. 7. The Court declines to address this
important issue through its one-sided presentation and accordingly strikes the
following portions of the Quinault and Quileute's reply brief and supporting
exhibits: (1) the portion of the Reply from page 6, line 18 through page 7, line
22, (2) Page 8 of Exhibit A of the third King Declaration (Dkt. # 291-1 at p. 9),
and (3) Exhibits C through E to the Third King Declaration (Dkt. # 291-1 at pp.
58-77; Dkt # 291-2; Dkt. # 291-3).FN3

A. Burden of Proof

The Responding Tribes' first argument that the Makah bear the burden of proof
in this subproceeding has no merit. The Quileute and Quinault fail to identify any
U & A subproceeding in the long history of this case where the Court has
determined that any party but the tribe whose U & A was at issue carried the
burden of proof. In the typical case, as the Quileute and Quinault point out, the
burden is indeed "on the petitioning tribe to produce evidence that disputed
waters were usual and accustomed fishing grounds." U.S. v. Lummi Indian Tribe, 841
F.2d 317, 318 (9th Cir.1988). This is so because in the typical subproceeding, the
petitioning tribe brings its own U & A before the Court for adjudication. In the
unusual case where a tribe's U & A is involuntarily brought forward for
adjudication, that tribe bears the burden of proof just as it would as if it had
been the petitioning party.

*13 Indeed, it is the settled law of this case that each tribe bears the burden
to produce evidence to support its U & A claims. See, e.g., U.S. v. Washington,
459 F.Supp. at 1059 ("[T]he Tulalips have the burden of producing evidence to
support their broad [U & A] claims."); 459 F.Supp. at 1037 ("In order to be
entitled to exercise its off-reservation treaty fishing rights, any tribe allowed
to intervene in this case to asserts its claim of treaty fishing rights shall,
prior to any attempt to exercise such rights, present prima facie evidence and
arguments supporting its claim. ...."). Any determination to the contrary would
undermine the structure of this case, encouraging tribes to engage in gamesmanship
with the mechanisms set up by Final Decision # 1 and wait for their U & A to be
put at issue so as to shrug off the burden to prove their claimed territorial
entitlements. As Judge Coyle wrote, it is incumbent on all "tribes which are
parties to this action to finally resolve their usual and accustomed fishing
places as soon as possible." Coyle Order, 18 F.Supp.3d at 1165. When tribes fail
to do so, they shoulder the burden to prove their customary fishing grounds all
the same.

Lacking authority from within this case, the Quinault and Quileute contend that
a request for determination is functionally equivalent to a complaint, and that
the ordinary placement of the burden of proof in a civil proceeding should
therefore apply. See Dkt. # 283, p. 4. While the party that seeks court action is
ordinarily freighted with the initial burden of proving her claims, this "ordinary
default rule" is not an inflexible one. See Schaffer ex rel. Schaffer v. Weast,
546 U.S. 49, 56-57, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). Indeed, the very case
on which the Quileute and Quinault rely, Schaffer ex. rel. Schaffer, acknowledges
that the general rule "admits of exceptions." Id. As the Supreme Court therein
explained, "[u]nder some circumstances [the] Court has even placed the burden of
persuasion over an entire claim on the defendant." Id. Among these exceptions are
instances in which fairness counsel against placing "the burden upon a litigant of
establishing facts peculiarly within the knowledge of his adversary." Id. at 60
(citing United States v. New York N.H. & H.R. Co., 355 U.S. 253, 256 n. 5, 78
S.Ct. 212, 2 L.Ed.2d 247 (1957)).

The Court recently illustrated the limits of Schaffer' s default rule in
Medtronic, Inc. v. Mirowski Family Ventures, LLC, --- U.S. ----, 134 S.Ct. 843,
187 L.Ed.2d 703 (2014), in which a patent licensee sought a declaratory judgment
of non-infringement. The Court rejected the defendant-patentee's argument that the
licensee, as the party seeking relief, has the burden to prove the absence of
infringement in a declaratory judgment action. Id. at 846. The Court explained
that the burden of proof is a "substantive aspect of a claim," Id. at 848, not to
be confused with a "mere incident of a form of procedure." Id. (quoting Garett v.
Moore-McCormack Co., 317 U.S. 239, 249, 63 S.Ct. 246, 87 L.Ed. 239 (1942)). Just
as the operation of the Declaratory Judgment Act is procedural in nature, so are
the Paragraph 25 avenues through which a tribe brings its U & A claim before the
Court. As with the Declaratory Judgment Act, Paragraph 25(a)(6) does not alter
substantive rights or shift the burden of proof away from the tribe asserting its
usual and accustomed fishing grounds. Fairness also counsels in this case toward
requiring the party with principal access to evidence about its own historic
fishing practices to carry the burden to support its claim of entitlement. The
burden of proof shall accordingly rest with the party asserting its U & A-here,
the Quileute and the Quinault.

B. Standard of Proof

*14 As to the appropriate standard of proof, the Court rejects the Quileute and
Quinault's assertion that anything other than the usual standard for a Paragraph
25(a)(6) subproceeding applies in this case. Respondents first contend that the
Makah must carry the burden to prove that the Secretary's determination of their
federal-water fishing areas is arbitrary and capricious. Respondents' attempt to
import an APA standard of review into this Paragraph 25 subproceeding is without
merit. This dispute does not involve the sort of challenge to federal regulations
that was at issue in Mosbacher. Rather, it arises under this Court's continuing
jurisdiction to determine, in the first instance, the boundaries of a tribe's
customary fishing grounds.

The fact that the federal government has crafted placeholder boundaries for the
tribes' ocean fishing grounds does not alter the standard of proof. As provided
above, each time NMFS and NOAA issued a proposed or final rule, they did so with
the express qualification that their regulations were neither intended to describe
the tribes' historic U & A's nor to supplant the jurisdiction of this Court to
adjudicate them. See, e.g. 51 Fed.Reg. 16471 (providing that the boundaries of a
tribe's fishery within Subarea 2A-1 "may be revised as ordered by a Federal
court"). The 1996 framework rule for tribal groundwater fisheries illustrates the
point. The NMFS therein explained that the rule represented merely a "reasonable
accommodation of the tribal fishing rights, absent more specific guidance from a
court" and that its interim boundaries may be revised at any time under this
Court's jurisdiction. See Dkt. # 58, Ex. L.

The United States has again emphasized the minimal impact that its regulations
should have on U & A adjudications in its responsive brief. See Dkt. # 285, p. 5
(explaining that "NOAA's regulations addressing the Quinault and Quileute U & A's
were not intended nor should be interpreted to be a conclusive boundary
determination. Instead, the regulations are necessary for the agency's management
of the ocean fisheries in the absence of a judicial determination of the
boundaries of the Tribe's U & As."); see also Dkt. # 58 (brief by the United
States explaining that NMFS "has consistently assumed that this Court would be the
forum to adjudicate the western boundaries of the Quileute, Quinault, and Hoh
usual and accustomed fishing grounds as it has done throughout the history of
United States v. Washington in the context of other tribal U & A boundary
disputes."). The Court is in accord. As it has stated before, it is this Court and
not NMFS that determines tribal U & A's. As a consequence, federal regulations in
this subproceeding have no bearing on the standard of proof that the Quileute and
Quinault are required to carry.

Finally, in anticipation of the Court's decision to reject an APA standard and
allocate the burden of proof to the Quileute and Quinault, Respondents move the
Court to adopt a less stringent standard than the typical "preponderance of the
evidence" standard employed in a civil case. The tribes point to previous
recognitions by this Court and by the Ninth Circuit that evidence of treaty-time
fishing practices is particularly hard to come by, and that evidentiary standards
in U & A subproceedings should reflect this reality. See U.S. v. Washington, 459
F.Supp. at 1059 ("In determining usual and accustomed fishing places the court
cannot follow stringent proof standards because to do so would likely preclude a
finding of any such fishing areas."); Lummi, 841 F.2d at 317 (Because of the
fragmentary nature of treaty-time documentation, "the stringent standard of proof
that operates in ordinary civil proceedings is relaxed."). As a consequence, the
Quinault and Quileute move the Court to determine that they are only required to
show, by direct evidence or reasonable inferences, the "probable location and
extent of usual and accustomed treaty fishing areas." Dkt. # 283, p. 11 (citing
U.S. v. Washington, 626 F.Supp. 1405, 1531 (W.D.Wash.1985)).

*15 For several reasons, the Court shall defer its determination as to the
precise standard of proof. First, the Court is not persuaded that a relaxing of
evidentiary standards is necessarily inconsistent with a preponderance of the
evidence standard. For instance, while Judge Boldt observed that "stringent"
standards of proof were inapplicable in U & A adjudications, he nonetheless
applied the preponderance of the evidence standard in Final Decision # 1. See
Final Decision # 1, 384 F.Supp. at 348 (basing findings of fact and conclusions of
law "upon a preponderance of the evidence found credible and inferences reasonably
drawn therefrom"). It stands to reason that a standard of proof identical to that
used by Judge Boldt in Final Decision # 1 would apply when the Court is asked to
adjudicate a U & A not specifically determined by Judge Boldt. In such an
instance, the Court is merely standing in for what Judge Boldt would himself have
done had the evidence been before him.

In addition, it is unclear to the Court what exactly the proposed lesser
standard of proof requires. Is the requirement to show "probable location" indeed
less stringent than the requirement to show location on a "more likely than not"
basis? If so, to what extent is the typical standard relaxed below a threshold 50%
showing? The Court finds that these questions merit fuller discussion and hearing
before a determination is reached on a matter that could carry a heavy
precedential impact. Accordingly, the Court shall defer its decision on the
precise standard of proof to be applied pending an opportunity for oral argument
on this question at the opening of the upcoming bench trial. FN4


For the reasons stated herein, the Court hereby ORDERS that:

(1) The Makah Motion for Partial Summary Judgment Rejecting Equitable Defenses
(Dkt.# 248) is GRANTED. The equitable defenses of laches, judicial estoppel, and
acquiescence do not preclude a determination of the usual and accustomed fishing
grounds and stations of the Quileute Indian Tribe and Quinault Indian Nation in
the Pacific Ocean.

(2) The Quinault and Quileute Motion for Summary Judgment that Judicial
Estoppel, Laches, Acquiescence, and Sovereign Immunity Bar the Makah Tribe's
Request for Determination (Dkt.# 251) is DENIED.

(3) The Quileute and Quinault Motion to Define the Burden of Proof (Dkt.# 283)
is DENIED in part and DEFERRED in part. The Motion is denied to the extent that it
moves the Court to place the burden of proof at trial on the Makah Tribe. The
Motion is deferred pending hearing at bench trial to the extent that it seeks
clarification of the precise standard of proof to be borne by the Quinault and
Quileute Tribes at trial.

FN1. The Quinault ultimately decided not to participate in the 2009 fishery
but informed the Quileute and the NWIFC that they intended to have five or
six catcher boats in the 2010 fishery, with an anticipated harvest of around
7,000 mt per boat. Dkt. # 126, Ex. I, at pp. 50-51.

FN2. The Court declines to reach the Quinault and Quileute's arguments as to
sovereign immunity, as the Court has previously denied this defense and as
the issue is currently on appeal before the Ninth Circuit.

FN3. Should this issue remain in controversy between the parties and require
resolution within this subproceeding, the parties may bring it to the
Court's attention at their pre-trial status conference and an appropriate
briefing schedule will be established.

FN4. The Court also acknowledges the expressed grievances of Interested
Parties that the instant Motion was filed with what the S'Klallam and
Tulalip Tribes term "minimal compliance" with the filing deadlines set out
in the Local Rules. While the Motion was filed in technical compliance with
LCR 7(d)(3), the Court agrees that it contravenes the spirit and structure
of this case. The Quinault and Quileute's decision to file their Motion so
as to provide for the shortest possible response time has limited the
ability of Interested Parties to respond to issues with potential
ramifications for the case as a whole. The Court frowns on any appearance of
gamesmanship in this or any other proceeding. The Court's decision to defer
this issue until trial provides an opportunity for Interested Parties to be
heard on the matter. No further briefing shall be submitted until invited by
the Court.


U.S. v. Washington