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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 1 of 21
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`UNITED STATES OF AMERICA, et al.,
`
`
`
`
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`STATE OF WASHINGTON, et al.,
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`
`
`
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`
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`Plaintiffs,
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`Defendants.
`
`
`
`v.
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`
`
`CASE NO. C70-9213 RSM
`
`SUBPROCEEDING NO. 19-01 RSM
`
`ORDER ON PENDING MOTIONS
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`I.
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`INTRODUCTION
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`This subproceeding is before the Court on cross-motions for summary judgment filed by
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`each of the four tribes actively litigating this matter: the requesting parties the Swinomish Indian
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`Tribal Community (“Swinomish”), the Tulalip Tribes (“Tulalip”), and the Upper Skagit Indian
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`Tribe (“Upper Skagit”) (collectively, the “Region 2 East Tribes”) and responding party the
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`Lummi Nation (“Lummi”). Dkt. #3.1 The Region 2 East Tribes sought judgment determining
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`that “[t]he adjudicated usual and accustomed fishing places of the Lummi Nation do not include”
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`1 Dkt. #22,063 in Case No. C70-9213RSM. Throughout, the Court provides citations to the
`docket of the underlying case the first time a filing is cited. Thereafter, citations are only to the
`docket of Subproceeding No. 19-01RSM.
`
`The Court’s citations are to the docket and page numbers applied by the Court’s CM/ECF system,
`unless otherwise indicated by paragraph number or page and line numbers.
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`ORDER – 1
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`

`

`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 2 of 21
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`
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`the waters east of Whidbey Island (the “Disputed Waters”).2 Id. at ¶ 30. The Region 2 East
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`Tribes now seek summary judgment and permanent injunctive relief. Dkt. #73-13 (Swinomish);
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`Dkt. #554 (Upper Skagit); Dkt. #575 (Tulalip).
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`
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`Lummi opposes the Region 2 East Tribes and seeks summary judgment and a ruling that
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`its usual and accustomed fishing grounds and stations specifically include the Disputed Waters.
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`Dkt. #67 (Lummi opposition);6 Dkt. #59 (Lummi motion for summary judgment).7 Having
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`reviewed the matter, the Court finds for the Region 2 East Tribes and determines that Judge Boldt
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`intended to exclude the Disputed Waters from his determination of Lummi’s usual and
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`accustomed fishing grounds and stations.
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`II.
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`BACKGROUND
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`
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`Almost one half-century ago, Judge Boldt determined Lummi’s usual and accustomed
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`fishing grounds and stations (“U&A”), as reserved under the Treaty of Point Elliott:8
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`45. . . . . The Lummis had reef net sites on Orcas Island, San Juan Island, Lummi
`Island and Fidalgo Island, and near Point Roberts and Sandy Point. . . . These
`Indians also took spring, silver and humpback salmon and steelhead by gill nets
`and harpoons near the mouth of the Nooksack River, and steelhead by harpoons
`and basketry traps on Whatcom Creek. They trolled the waters of the San Juan
`Islands for various species of salmon.
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`46. In addition to the reef net locations listed above, the usual and accustomed
`fishing places of the Lummi Indians at treaty times included the marine areas of
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`2 Swinomish indicates that the five principal bodies of water within the Disputed Waters are
`Skagit Bay, Port Susan, Saratoga Passage, Holmes Harbor, and Possession Sound. Dkt. #73-1 at
`2 (Dkt. #22,238 in Case No. C70-9213RSM).
`3 The Court cites to Swinomish’s corrected motion for summary judgment, filed at Dkt. #73-1
`(Dkt. #22,238 in Case No. C70-9213RSM). Swinomish’s original motion for summary judgment
`is filed at Dkt. #51 (Dkt. #22,200 in Case No. C70-9213RSM).
`4 Dkt. #22,206 in Case No. C70-9213RSM.
`5 Dkt. #22,208 in Case No. C70-9213RSM.
`6 Dkt. #22,231 in Case No. C70-9213RSM.
`7 Dkt. #22,210 in Case No. C70-9213RSM.
`8 Treaty of Point Elliott, January 22, 1855, ratified March 8, 1859, and proclaimed April 11,
`1859, 12 Stat. 927.
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`ORDER – 2
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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 3 of 21
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`
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`Northern Puget Sound from the Fraser River south to the present environs of
`Seattle, and particularly Bellingham Bay.
`
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`United States v. Washington, 384 F. Supp. 312, 360 (W.D. Wash. 1974), aff’d and remanded,
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`520 F.2d 676 (9th Cir. 1975) (the “Boldt Decree”) (citations omitted).
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`
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`Through extensive prior litigation, this Court and the Ninth Circuit have determined that
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`Judge Boldt intended for his expansive and general description of the “marine areas of Northern
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`Puget Sound from the Fraser River south to the present environs of Seattle” to include Admiralty
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`Inlet on the western side of Whidbey Island and “exclude[s] the Strait of Juan de Fuca and the
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`mouth of the Hood Canal.” United States v. Lummi Indian Tribe, 235 F.3d 443, 445, 451–52
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`(9th Cir. 2000) (“Lummi I”). Noting that “Admiralty Inlet ‘would likely be a passage through
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`which the Lummi would have traveled’ from the Fraser River, south through the San Juan
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`Islands, to the present environs of Seattle,” the Ninth Circuit has further concluded that Judge
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`Boldt intended to include “the waters immediately to the west of northern Whidbey Island . . .
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`within the Lummi’s U&A.” United States v. Lummi Nation, 763 F.3d 1180, 1187 (9th Cir. 2014)
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`(Lummi II). Subsequently, the Ninth Circuit expanded “the waters immediately to the west of
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`northern Whidbey Island” to include, at least, “the waters ‘northeasterly of a line running from
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`Trial Island near Victoria, British Columbia, to Point Wilson on the westerly opening of
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`Admiralty Inlet, bounded on the east by Admiralty Inlet and Whidbey Island, and bounded on
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`the north by Rosario Strait, the San Juan Islands, and Haro Strait.’” United States v. Lummi
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`Nation, 876 F.3d 1004 (9th Cir. 2017) (“Lummi III”); Lower Elwha Klallam Indian Tribe v.
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`Lummi Nation, 849 F. App’x 216, 218 (9th Cir. 2021).
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`
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`The Court is now tasked with determining whether the expansive and general description
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`of Lummi U&A includes the Disputed Waters. Lummi’s general position is that the Disputed
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`Waters are so obviously contained within Judge Boldt’s description of “the marine areas of
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`ORDER – 3
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`

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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 4 of 21
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`
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`Northern Puget Sound” that to otherwise mention geographic anchors within the Disputed Waters
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`would be unnecessarily redundant. Conversely, the Region 2 East Tribes maintain that the
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`omission of geographic anchors, combined with the lack of evidence of Lummi fishing or travel
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`in the Disputed Waters, clearly convey Judge Boldt’s intent to omit the Disputed Waters from
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`Lummi’s U&A.
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`A. Legal Standard
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`III.
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`DISCUSSION
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`
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`This subproceeding invokes the Court’s continuing jurisdiction under Paragraph 25(a)(1)
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`of Judge Boldt’s injunction, as subsequently modified. Dkt. #3 at ¶ 2; Boldt Decree, 384 F. Supp.
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`at 419, as modified United States v. Washington, 18 F. Supp. 3d 1172, 1213–1216 (W.D. Wash.
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`1993).9 Accordingly, the Court considers whether Lummi fishing within the Disputed Waters
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`would be “in conformity with [the Boldt Decree and] or this injunction.” Boldt Decree, 384 F.
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`Supp. at 419. In doing so, the Court interprets Judge Boldt’s prior orders and construes the
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`“judgment so as to give effect to the intention of the issuing court.” Muckleshoot Tribe v. Lummi
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`Indian Tribe, 141 F.3d 1355, 1358 (9th Cir. 1998) (“Muckleshoot I”) (quoting Narramore v.
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`United States, 852 F.2d 485, 490 (9th Cir. 1988)) (internal quotation marks omitted). The Court’s
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`consideration proceeds under the two-step process established by the Muckleshoot trilogy of
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`cases.
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`
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`First, the party asserting ambiguity must offer “evidence that suggests that [the U&A] is
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`ambiguous or that the court intended something other than its apparent meaning.” United States
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`v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000) (“Muckleshoot III”) (quoting
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`Muckleshoot I, 141 F.3d at 1358) (cleaned up). This is a more searching process than statutory
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`9 Dkt. #13,599 in Case No. C70-9213RSM.
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`ORDER – 4
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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 5 of 21
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`interpretation because “the ‘language of the court must be read in the light of the facts before
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`it.’” Muckleshoot III, 235 F.3d at 433 (quoting Julian Petroleum Corp. v. Courtney Petroleum
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`Co., 22 F.2d 360, 362 (9th Cir. 1927)). Accordingly, the mere fact that a geographic term may
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`include the waters at issue does not resolve the matter. Id. Rather, the Court may consider the
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`record before Judge Boldt when he established the U&A and “may also include additional
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`evidence if it sheds light on the understanding that Judge Boldt had of the geography at the time.”
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`Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020, 1024–25 (9th Cir. 2010) (“Upper
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`Skagit”) (quoting Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9th Cir.
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`2000) (“Muckleshoot II”)) (quotation marks omitted).
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`If Judge Boldt’s U&A determinations are ambiguous or mean something other than their
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`apparent meaning, the moving party must then “show that there was no evidence before Judge
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`Boldt that [the responding party] fished [in the disputed waters] or traveled there in route to”
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`other portions of the responding party’s U&A. Upper Skagit, 590 F.3d at 1023; see also Lummi
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`III, 876 F.3d at 1010. Conversely, summary judgment in favor of the responding party is
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`appropriate if it can establish that it fished in or traveled through the disputed waters.
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`Here, the determinations are appropriately resolved on the parties’ motions for summary
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`judgment. Summary judgment is appropriate where “the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.
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`R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are
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`those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at
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`248.
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`Neither party offers additional evidence of Judge Boldt’s contemporaneous
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`understanding of geography and rely on the record before Judge Boldt, obviating factual disputes.
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`Muckleshoot I, 141 F.3d at 1359 (noting pretrial order providing that “the only relevant evidence
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`ORDER – 5
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`

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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 6 of 21
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`is that which was considered by Judge Boldt when he made his finding”). Because the Court’s
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`review is limited, almost exclusively, to the record before Judge Boldt and because of the
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`practical difficulties presented by the underlying case and its numerous subproceedings, the
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`Ninth Circuit has relaxed summary judgment strictures in the context of this case. See Upper
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`Skagit, 590 F.3d at 1025 n.9. Where each party had the opportunity to augment the record with
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`evidence of Judge Boldt’s contemporaneous understanding of ambiguous terms, “a trial on the
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`merits would reveal no additional relevant facts.” Id. Accordingly, “the district judge, who is
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`also the trier of fact, may resolve conflicting inferences and evaluate the evidence to determine
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`Judge Boldt’s intent.” Id. (citations omitted).
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`B. Lummi’s U&A is Ambiguous
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`The relevant portion of Lummi’s U&A determination is “the marine areas of Northern
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`Puget Sound from the Fraser River south to the present environs of Seattle, and particularly
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`Bellingham Bay.” The Court has little trouble concluding that Judge Boldt’s broad use of “the
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`marine areas of Northern Puget Sound” is ambiguous.
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`
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`First, and most importantly, Lummi’s U&A determination does not include any
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`geographic anchors within the Disputed Waters for Judge Boldt’s use of “Northern Puget
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`Sound.” The Ninth Circuit has previously noted the importance of geographic anchors where
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`more general geographic terms are used. See Upper Skagit, 590 F.3d at 1025–26. Because the
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`Court’s inquiry must “focus[] on individual U&As, [] the fact that Judge Boldt defined ‘Puget
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`Sound’ in one instance as including Skagit Bay and Saratoga Passage does not mean that
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`references to ‘Puget Sound’ in other U&As always include those same areas.” Id. at 1026. None
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`of the geographic anchors referenced—the “Fraser River,” the “present environs of Seattle,” or
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`“Bellingham Bay”—are within the Disputed Waters. While Lummi points to geographic anchors
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`ORDER – 6
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`

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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 7 of 21
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`referenced in its U&A determination which are adjacent to the Disputed Waters, as discussed
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`further below, the simple fact remains that none are within the Disputed Waters.
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`Second, the Ninth Circuit has previously determined that the waters west of Whidbey
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`Island served as the primary thoroughfare for tribes traveling between the Fraser River and the
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`environs of Seattle. The conclusion was premised on the explanation of Dr. Barbara Lane—an
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`expert witness that Judge Boldt relied upon heavily and held in high regard—“that [t]he deeper
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`saltwater areas, the Sound, the straits, and the open sea, served as public thoroughfares, and as
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`such, were used as fishing areas by anyone travelling [sic] through such waters.” Tulalip Tribes
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`v. Suquamish Indian Tribe, 794 F.3d 1129, 1135 (9th Cir. 2015) (“Tulalip Tribes”) (citations and
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`internal quotation marks omitted, alteration in original); see also Lummi III, 876 F.3d at 1010.
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`
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`The Ninth Circuit has specifically held that this was true of the Suquamish traveling north:
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`As indicated by the plain text of the Suquamish’s U&A, the Suquamish traveled
`from “the marine waters of Puget Sound from the northern tip of Vashon Island
`to the Fraser River.” [United States v. Washington, 459 F. Supp. 1020, 1049
`(W.D. Wash. 1978) (“Decision II”)]. When traveling from Vashon Island to the
`Fraser River, the Suquamish would have passed through the waters west of
`Whidbey Island, and likely would have fished there while traveling.
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`Tulalip Tribes, 794 F.3d at 1135. And the Ninth Circuit has held that this was true of Lummi
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`traveling south:
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`The nautical path that we traced in Lummi I from the San Juan Islands to Seattle
`cuts right through the waters at issue here. See Lummi I, 235 F.3d at 452. Indeed,
`the waters west of Whidbey Island are situated just north of Admiralty Inlet,
`which is included in the Lummi’s U&A, and just south of the waters surrounding
`the San Juan Islands (such as Haro and Rosario Straits), which are also included
`in the Lummi’s U&A. As we have already observed, “[Lummi I’s] reasoning
`suggests that the waters immediately to the west of northern Whidbey Island
`would be included within the Lummi’s U&A.” Lummi II, 763 F.3d at 1187.
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`Lummi III, 876 F.3d at 1009–10 (alteration in original). The expansive wording of Lummi’s
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`U&A is ambiguous as the Court must account for Judge Boldt’s heavy reliance on the
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`preeminence of the waters west of Whidbey Island as the north/south marine thoroughfare within
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`ORDER – 7
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`

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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 8 of 21
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`Puget Sound. Considered in this light, Lummi’s U&A is ambiguous as to whether it includes or
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`excludes the Disputed Waters.
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`Third, this conclusion comports with the prior decisions in this case where this Court and
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`the Ninth Circuit have, several times, determined that Lummi’s generalized U&A determination
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`is ambiguous. See e.g. Muckleshoot I, 141 F.3d at 1360 (“Judge Boldt, however, did ‘specifically
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`determine[ ]’ the location of Lummi’s usual and accustomed fishing grounds, albeit using a
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`description that has turned out to be ambiguous.”); Lummi III, 876 F.3d at 1008–09 (“All parties
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`agree that Finding of Fact 46 is ambiguous because it does not clearly include or exclude the
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`disputed waters.”); see also Tulalip Tribes, 794 F.3d at 1133 (“It does not matter that the
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`contested areas at issue here are slightly different; the finding that Judge Boldt intended
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`something different than the plain text of the Suquamish U&A finding remains intact.”).
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`Fourth, and as already noted, the Ninth Circuit has previously determined that the
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`Suquamish Tribe’s U&A, defined as including “the marine waters of Puget Sound from the
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`northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits,” was
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`ambiguous as to whether it included Saratoga Passage and Skagit Bay—portions of the Disputed
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`Waters. Upper Skagit, 590 F.3d at 1024; see also Tulalip Tribes, 794 F.3d at 1133. The same
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`conclusion is appropriate in this case.
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`Fifth, the Ninth Circuit has approved of collapsing consideration of ambiguity and
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`consideration of the evidence before Judge Boldt where the existence of fishing or travel within
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`the contested waters appears to be the more significant inquiry. See Tulalip Tribes, 794 F.3d at
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`1133 (noting previous decision affirming district court’s determination that U&A was ambiguous
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`after consideration of the evidence before Judge Boldt, even where “apparent meaning” of U&A
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`included the disputed waters at issue). Even if the Court were to conclude that Lummi’s U&A
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`appears unambiguous, the analysis below makes clear that Lummi’s U&A is, in fact, ambiguous.
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`ORDER – 8
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`

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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 9 of 21
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`Lummi’s arguments that its U&A unambiguously includes the Disputed Waters is not
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`persuasive.
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`Lummi first argues that applying the law of the case doctrine to this Court’s order in
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`subproceeding 05-02, which was affirmed by the Ninth Circuit Court of Appeals in Upper Skagit,
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`establishes that Lummi’s U&A unambiguously includes the Disputed Waters. Dkt. #59 at 14–
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`16 (relying on United States v. Washington, 20 F. Supp. 3d 831, 833–35, 2007 WL 30869, at *3–
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`5 (W.D. Wash. 2007)). Lummi seizes upon the order’s statement that “in every instance in 1975
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`where Judge Boldt did state a definition for Puget Sound, it is a broad one which necessarily
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`includes both Saratoga Passage and Skagit Bay.” United States v. Washington, 20 F. Supp. 3d
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`at 835. Relying on the broad geographical terms used by Judge Boldt, Lummi asserts that the
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`Disputed Waters are “marine waters,” are within “Puget Sound,” are within “Northern Puget
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`Sound,” and are therefore within its U&A. Dkt. #59 at 14–16. Accordingly, Lummi argues that
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`under the law of the case doctrine the Court must reach the same conclusion here—that Lummi’s
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`U&A in “the marine areas of Northern Puget Sound” includes the Disputed Waters.
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`But Lummi omits that the order upon which it relies ultimately held that Judge Boldt,
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`despite broadly using “the marine waters of Puget Sound” in defining Suquamish’s U&A, did
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`not intend to include Saratoga Passage or Skagit Bay. United States v. Washington, 20 F. Supp.
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`3d at 841. Still further, Lummi omits, outside a footnote, that the order also explained that “in
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`describing the individual tribes’ usual and accustomed fishing areas, Judge Boldt was necessarily
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`indicating only a portion of that broader Puget Sound, even when, as here, he used the term ‘Puget
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`Sound’ without qualification.”10 Id.; see also Upper Skagit, 590 F.3d at 1026 (holding that the
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`10 Perhaps Judge Boldt’s restriction of Lummi U&A to “Northern Puget Sound” was intended to
`define a distinct area within Puget Sound. But even then, what constitutes “Northern Puget
`Sound” would remain ambiguous.
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`ORDER – 9
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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 10 of 21
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`proper inquiry “focuses on individual U&As, and the fact that Judge Boldt defined ‘Puget Sound’
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`in one instance as including Skagit Bay and Saratoga Passage does not mean that references to
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`‘Puget Sound’ in other U&As always include those same areas”). While Lummi’s argument may
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`not misstate the prior decisions in this case, it certainly paints them in a misleading light.
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`Of no small import, Lummi’s position would have the Court dispense with the Ninth
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`Circuit’s consideration of geographic anchor points in determining the ambiguity of a tribe’s
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`U&A under the Boldt Decree. As the Ninth Circuit has explained,
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`Judge Boldt used specific geographic anchor points in describing other tribes’
`U&As. . . . From this it is reasonable to infer that when he intended to include
`an area, it was specifically named in the U&A. In Suquamish’s case, the only
`inclusive geographic anchor points for the term “Puget Sound” are the “Haro and
`Rosario Straits,” which do not include or delineate the [Skagit Bay and Saratoga
`Passage]. That Judge Boldt neglected to include Skagit Bay and Saratoga Passage
`in the Suquamish’s U & A supports our conclusion that he did not intend for them
`to be included.
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`Upper Skagit, 590 F.3d at 1025 (internal citations omitted); see also Lummi I, 235 F.3d at 451
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`(noting that Dr. Lane identified specific fishing grounds and that “it is the specific, rather than
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`the general, evidence presented by Dr. Lane that Judge Boldt cited in support for his findings of
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`fact regarding the Lummi’s” U&A). Lummi does point to “the present environs of Seattle” and
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`“Fidalgo Island” as geographic anchors supporting the inclusion of the Disputed Waters within
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`“Northern Puget Sound.” Dkt. #59 at 17. But, just as in Suquamish, none of these geographic
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`anchor points are within the Disputed Waters and none establish that the Disputed Waters are
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`within Lummi’s U&A.
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`Further still, the Court struggles to see how Lummi’s argument could logically be correct.
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`Suquamish’s U&A includes “the marine waters of Puget Sound from the northern tip of Vashon
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`Island to the Fraser River including Haro and Rosario Straits.” Decision II, 459 F. Supp. at 1049
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`(emphasis added). Despite this broad language, Judge Boldt intended to omit Skagit Bay and
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`ORDER – 10
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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 11 of 21
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`Saratoga Passage from Suquamish’s U&A. See Upper Skagit, 590 F.3d at 1026. Lummi’s U&A,
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`in relevant part, is more limited as it includes only “the marine areas of Northern Puget Sound.”
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`Boldt Decree, 384 F. Supp. at 360 (emphasis added). Whether Judge Boldt intended to create a
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`distinction is not clear. But Suquamish’s U&A was determined to be ambiguous as to whether
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`it included Skagit Bay and Saratoga Passage. The Court sees no reason that Lummi’s more
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`restrictive U&A should unambiguously include the Disputed Waters, an area that includes Skagit
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`Bay and Saratoga Passage. If this was Judge Boldt’s intent, he expressed it ambiguously.
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`The Court is also unpersuaded by Lummi’s argument that prior decisions finding its U&A
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`ambiguous are not binding in this case because the decisions considered ambiguity as to different
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`portions or borders of its U&A. Dkt. #59 at 17–18. This argument is not consistent with the
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`Ninth Circuit’s prior decisions. See Tulalip Tribes, 794 F.3d at 1133 (“It does not matter that the
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`contested areas at issue here are slightly different; the finding that Judge Boldt intended
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`something different than the plain text of the Suquamish U&A finding remains intact.”). Nor
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`does the argument substantively address that the ambiguities regarding Lummi’s western and
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`southern boundaries, due to a lack of geographic anchors, similarly exists with regard to the
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`Disputed Waters.
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`The Court finds Lummi’s arguments that Judge Boldt unambiguously included the
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`Disputed Waters in its U&A unpersuasive. Rather, the Court concludes that Lummi U&A is
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`ambiguous as to the Disputed Waters and proceeds to resolve the ambiguity by considering the
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`evidence before Judge Boldt.
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`C. The Record Does Not Evidence Lummi Travel or Fishing in the Disputed Waters
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`The obvious starting point at which to consider the evidence before Judge Boldt is the
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`anthropological reports prepared by Dr. Lane. This Court and the Ninth Circuit have consistently
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`noted the important role that Dr. Lane’s reports played in Judge Boldt’s findings of fact:
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`ORDER – 11
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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 12 of 21
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`Judge Boldt found anthropological reports prepared by Dr. Barbara Lane, an
`expert witness, to be “highly credible” and “very helpful in determining by direct
`evidence or reasonable inferences the probable location and extent of” U&As.
`[Decision II, 459 F. Supp. at 1059]; see also [Boldt Decree], 384 F. Supp. at 350
`(finding that Dr. Lane’s reports “have been exceptionally well researched and
`reported and are established by a preponderance of the evidence”).
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`Tulalip Tribes, 794 F.3d at 1132.11
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`1. Lummi Reefnetting and Traditional Fishing Grounds
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`In considering Lummi U&A, Dr. Lane noted, and Judge Boldt concluded, that reefnetting
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`was a principal economic activity of the Lummi. Boldt Decree, 384 F. Supp. at 360 (“Reef
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`netting was one of the two most important economic activities engaged in by [Lummi], the other
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`being the sale of dog fish oil.”); Dkt. #60-19 at 11 (Dr. Lane indicating that “reefnetting was the
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`most important economic activity engaged in by” Lummi). Lummi reefnetting techniques
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`allowed them to harvest unmatched quantities of salmon, providing “surpluses to trade for
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`imported commodities,” including “coiled baskets and fibers and grasses from” upriver tribes.
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`Dkt. #60-19 at 11, 13–14.
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`Not surprisingly, much of Dr. Lane’s reports focused on Lummi reefnetting sites and
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`techniques. While Dr. Lane conceded that she could not pinpoint every fishing site used by the
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`Lummi, she felt she could “indicate the general area of their traditional fishing operations and
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`. . . designate certain sites as important or principal fishing locations.” Id. at 28. Accordingly,
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`11 Two of Dr. Lane’s reports are of particular importance here: BARBARA LANE,
`ANTHROPOLOGICAL REPORT ON THE IDENTITY, TREATY STATUS AND FISHERIES OF THE LUMMI
`TRIBE OF INDIANS (1973) (Dkt. #60-19); and BARBARA LANE, POLITICAL AND ECONOMIC
`ASPECTS OF INDIAN-WHITE CULTURE CONTACT IN WESTERN WASHINGTON IN THE MID-19TH
`CENTURY (1973) (Dkt. #60-20). The parties have also referenced Dr. Lane’s report on the Samish
`Indian Tribe, which partially incorporated into what is now the Lummi Nation. See e.g. Dkt.
`#73-2 (citing BARBARA LANE, IDENTITY, TREATY STATUS AND FISHERIES OF THE SAMISH INDIAN
`TRIBE (1975) (Dkt. #70 at 131–160)). Because the Samish report was prepared after Judge
`Boldt’s determination of Lummi U&A and was not offered as proof of Judge Boldt’s
`understanding of contemporary geography, the Court has not considered it.
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`ORDER – 12
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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 13 of 21
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`Dr. Lane identified Lummi reefnetting “locations in the San Juan Islands, off Point Roberts, off
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`Lummi Island and Fidalgo Island” and, most relevant here, “Langley Point on Fidalgo Island.”
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`Id. at 28, 29. Included in Dr. Lane’s report is a map of reefnetting stations.
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`ORDER – 13
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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 14 of 21
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`Id. at 30. As is evident from Dr. Lane’s discussion and map, none of the sites that she identified
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`are within the Disputed Waters east of Whidbey Island and the southernmost site is located off
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`of Fidalgo Island’s Langley Point. The omission is more significant when considered in context
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`with Dr. Lane’s broader consideration of Lummi fishing.
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`In addition to identifying reefnet sites, Dr. Lane’s reports focused on Lummi’s
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`“traditional” fishing grounds, all of which were located to the north and west of the Disputed
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`Waters. In addition to fishing at their identified reefnet sites, Lummi trolled in “the waters of the
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`San Juan Islands for spring salmon” and relied on “river catches.” Id. at 12, 27. Lummi’s
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`“[f]reshwater fisheries included the river drainage systems emptying into the bays from
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`Boundary Bay south to Fidalgo Bay.” Id. at 32. In sum, Dr. Lane indicated that Lummi “trolled
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`for salmon in the contiguous salt waters . . ., speared them in the bays and streams of the
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`mainland, and took them by means of weirs and traps in the rivers . . . from what is now the
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`Canadian border south to Anacortes.” Id. at 29. Dr. Lane did not identify any portion of the
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`Disputed Waters as traditional fishing grounds for the Lummi.
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`The Court is not persuaded by Lummi’s argument that identification of a reefnet site “off
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`Langley Point on Fidalgo Island” was evidence of fishing or travel within the Disputed Waters.
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`Lummi attempts to characterize this single offshore site as the “southwest corner of Fidalgo
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`Island” and as “near Deception Pass, the entry point from open water into Skagit Bay.” Dkt. #59
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`at 21. But fishing off of Langley Point is not connected with fishing or travel in the Disputed
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`Waters and the identification of an open water reefnet site does not support the conclusion that
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`Lummi traveled through Deception Pass and into Skagit Bay and the Disputed Waters. In all
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`regards, identification of specific Lummi fishing sites remains distinct from the Disputed Waters.
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`Similarly, the Court is not persuaded by Lummi’s reliance on Dr. Lane’s summarizing
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`conclusion that, outside of reefnet sites, Lummi utilized “fisheries in the Straits and bays from
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`ORDER – 14
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`Case 2:19-sp-00001-RSM Document 79 Filed 09/20/21 Page 15 of 21
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`the Fraser River south to the present environs of Seattle.” Id. at 20 (quoting Dkt. #60-19 at 32).
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`Lummi’s reading of Dr. Lane’s somewhat ambiguous conclusion is not supported by Dr. Lane’s
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`own reports, which made clear that the referenced bays and straits were the “contiguous salt
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`waters of Haro and Rosario Straits and in the islands, . . . the bays and streams of the mainland,
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`and . . . the rivers.” Dkt. #60-19 at 29. But as was already noted, Dr. Lane limited her broad
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`description and indicated that “[t]he traditional fishing areas discussed thus far extended from
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`what is now the Canadian border south to Anacortes.” Id. As such, Dr. Lane’s references to
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`“bays” were primarily to Bellingham Bay, Samish Bay, and Padilla Bay, all of which she had
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`previously identified in her report. Dkt. #60-19 at 4 (“Bellingham Bay, Lummi Bay” and
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`“Semiahmoo Bay and Birch Bay”); id. at 5 (“Samish Bay, Padilla Bay and Fidalgo Island”); id.
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`at 6 (“Bellingham Bay”); id. at 12 (“Fisherman’s Bay, Lopez Island”); id. at 13 (“Boundary
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`Bay”); id. at 26 (“Bellingham Bay”); id. at 29 (“Birch Bay”); and id. at 31 (“Bellingham Bay”
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`and “Boundary Bay south to Fidalgo Bay”). Dr. Lane did not include the Disputed Waters within
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`Lummi’s traditional fishing grounds.
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`2. Lummi Travel and Fishing in the Sound and Straits
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`As the Disputed Waters were not a part of Lummi’s traditional fishing grounds as
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`identified by Dr. Lane, Judge Boldt’s inclusion of the Disputed Waters in Lummi U&A, if at all,
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`rested upon reasonable inferences from more general evidence. Chief among such general
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`evidence is the uncontroverted fact “[t]hat [Lummi] travelled [sic] widely and frequently
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`throughout the waters of the Sound and Straits.” Id. at 31. Similarly, while noting that it could
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`not be considered Lummi “home territory,” Dr. Lan