United States v. Washington (18 F. Supp. 3d 1123, 1990)

TABLE OF CONTENTS

ORDER PAGE

Order re Service List (10/22/87) 1128

1132 Decision and Order re United States’ Motions for Partial Dismissal (7/29/88)

Order Denying Motion to Disqualify (11/12/88) 1136

1143 Order Adopting the Special Master’s Report and Recommendation (2/25/89)

1152 Decision and Order re Tulalip Motion for Preliminary Injunction to Enjoin Lummi Fishing in Area 8A (3/13/89)

1153 Order re Tribal Motion for Attorney’s Fees (2/15/90)

1155 Decision and Order re Cross-Motions for Summary Judgment (2/15/90)

1165 Order Denying Motion to Refer and Granting Motion for Approval and to Dismiss Subproceedings (5/3/90)

1166 Decision and Order re Eastern Boundary of Lummi Indian Reservation (5/26/90)

1171 Order Denying Quileute Tribe’s Motion for Temporary Restraining Order (11/3/90)

COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 1986) ORDER RE SERVICE LIST

(October 22, 1987)

ROBERT E. COYLE, District Judge.

In order to ensure that the Court, the clerk’s office, the magistrate, the special master, if any, the court’s advisor, counsel and all others entitled or required to be served receive all appropriate papers filed in Phase I of United States v. Washington, it is ordered that the following procedures be observed:

1. Official Service List. The Clerk of the Court is to maintain and keep an Official Service List, in the form attached hereto, which will include the following:

a. A Master Service List which will include the following:

i. The name, address and phone number of the judge, the magistrate, the special master, if any, the clerk, and the court advisor, who are to receive all filings.

ii. The name, address and phone number, and a designation of the party or parties being represented, of each plaintiffs counsel who is to receive all filings. This list should include all plaintiffs’ counsel who have made general appearances for one or

more Tribes and the names of the Tribes represented.

iii. The name, address and phone number, and a designation of the party or parties being represented, of each defendant’s counsel who is to receive all filings.

iv. The name, address and phone number, and a designation of the ami-cus or amici being represented, of each amicus’ counsel who is to receive all filings.

v. The name, address and phone number of each other party, amicus or person who is to receive all filings.

vi. The name, address and phone number and, in the case of counsel, a designation of the party or parties being represented, of each counsel for any plaintiff, defendant, amicus or other party, and each other party, amicus or person who is to receive all initial filings.

b. Individual service lists by subpro-ceeding number which will contain the following:

i. The name, address and phone number and, in the case of counsel, a designation of the party or parties being represented, of each counsel or other person, including any special master, and each other person or party who does not appear on the Master Service List and who is to receive all filings in that subproceeding.

ii. The name, address and phone number and, in the case of counsel, a designation of the party or parties being represented, of each counsel and each other party or person who is designated on the Master Service List as receiving initial pleadings only and who is to receive all fixings in that subproceeding.

iii. The name, address and phone number, and a designation of the party or parties being represented, of each counsel who appears on the Master Service List and who is representing a party or parties in that subpro-ceeding in addition to.the party or parties designated on the Master Service List.

Provided, that no individual service list need be maintained for any subproceeding in which service and representation of the parties are to be identical to that set forth on the Master Service List.

2. Additions and Revisions. Whenever there is any addition or revision to the Master Service List or the service list for any subproceeding, or a service list for a subproceeding where an individual service list was not previously required, as soon as possible, the Clerk of the Court shall distribute the revised Master Service, or the revised or new service list for the individual subproceeding, with the date of the new or revised service list shown thereon, to the courts the magistrate, the special master, if any, the court technical advisor, all counsel and any other party, amicus or person on the Official Service List, including all counsel and all parties, amici or persons on the Master Service List and the service lists for each individual subpro-ceeding.

3. Appearances and Notices.

a. Whenever any counsel makes a general appearance, that counsel, shall be responsible for obtaining a current Official Service List and shall serve a written notice of appearance, by separate pleading, on the court, the magistrate, any special master, the court ad-visor, all counsel and other parties, amici or persons on the Master Service List and on all counsel and other parties or persons on each of the service lists for the individual subproceedings, and shall file the same with the Clerk.

b. Whenever any counsel who has made a general appearance, is substituted for by other counsel or associates with other counsel, or has a change of address, phone number or any other change, that counsel shall be responsible for serving written notice of the same, by separate pleading, on the court, the magistrate, any special master, the court advisor, all counsel and other parties, amici or persons on the Master Service List and on all counsel and other parties or persons on each of the service lists for the individual subproceedings, and shall file the same with the Clerk.

c. Whenever any counsel, who has not made a general appearance, makes an appearance for some limited purpose or subproceeding, that counsel shall be responsible for obtaining a current Official Service List and shall serve a written notice of appearance, by separate pleading, specifying the limited purpose or subproceeding for which the appearance is being made, on the court, the magistrate, any special master, the court advisor, all counsel and other parties, amici or persons on the Master Service List and on # 11 counsel and other parties, amici or persons on the Service list, if any, for the individual subproceeding for which an appearance is being made, and shall file the same with the Clerk.

d. Whenever any counsel, who has made a limited appearance, is substituted for by other counsel or associates with other counsel, or has a change of address, phone, number or any other change, that counsel shall be responsible for serving written notice of the same, by separate pleading, on the court, the magistrate, any special master, the court advisor, all counsel and other parties, amici or persons on the Master Service List and on all counsel and other parties, amici or persons on the service list, if any, for the individual subproceeding to which the notice applies, and shall file the same with the Clerk.

e.Whenever any authorized person other than counsel makes a general or limited appearance, is substituted by or associates-with another, or has a change of address, phone number or other change, such person shall serve and file like notice as is required of counsel in subparagraphs 3.a. through 3.d. of this Order.

4. Participation. All counsel or other authorized persons who have made either a general appearance or an appearance in a particular subproceeding may participate in that subproceeding at any stage of the litigation but such participation shall be governed by the schedules, orders and other arrangements in place in that subpro-ceeding.

5. Certificate of Service. A Certificate of Service in substantially the form of this attached Certificate of Service shall be served with each pleading or other paper required to be served. It shall not be necessary for a copy of the Official Service List, or any portion thereof, showing upon whom service has been made to be served with the Certificate of Service; provided, that a copy of the Official Service List, or portion thereof, showing upon whom service has been made shall be filed with the original Certificate of Service filed with the clerk of the court.

6. Notice Re: Discovery. Any party or other authorized person serving interrogatories, requests for documents, requests for admissions, or answers and responses thereto, may serve a notice in substantially the form of the attached Notice Re: Discovery, (a) in the case of interrogatories and requests, upon persons other than the party to whom the interrogatories and requests are directed, and (b) in the case of answers and responses, upon persons other than the party who propounded the interrogatories and requests, in- lieu of service of such papers. The Notice Re: Discovery and the papers required in paragraph 5 of this order shall be filed with the clerk. Any party who has not been served with interrogatories and requests or answers and responses thereto, may request a copy of such papers. All such requests for copies shall be complied with within five days of service of the request.

7. Mailing of Orders, etc. Notwithstanding the other provisions of this order, the Clerk of the Court shall continue to mail copies of all orders, minute orders, docket sheets and materials relating to appeals to all counsel and to all other persons listed on the Official Service List, whether appearing generally or for a limited purpose or subproceeding.

8. Mailing of Reports and Recommendations. The magistrate and any special master shall mail copies of all reports and recommendations in accordance with paragraph 2 of this Order.

9. Amici. Notwithstanding the other provisions of this order; any person, or entity which desires to participate in any subproceeding as amicus, including the amici named on the Master Service List, shall file a motion to appear as amicus in that subproceeding in conformity with the applicable court rules relating to motions, and pending the granting or denial of such motion, counsel for such person or entity need be served only with those filings specifically relating to the motion to appear as amicus, and the Clerk, magistrate, or any special master, as the caste may be, need only mail to counsel for such person or entity those orders, or reports and recommendations specifically relating to such motion.

10. Copy of Order. Upon any appearance of any counsel or other person or party not on the Official Service List attached hereto, the Clerk shall mail such party a copy of this order and a copy of the current Official Service List, if not previously requested and obtained by such person or party.

11.Effective Date. Effective immediately, the attached Official Service List dated September 14, 1987, shall be the Official Service List for Phase I of these proceedings, subject to subsequent changes pursuant to the terms of this order, and such Official Service List super-cedes all other service lists.

CERTIFICATE OF SERVICE

I hereby certify that I served, the documents listed below by personal service or by causing to have mailed a copy of same, postage prepaid, on (date), to the persons required to be served in this subproceed-ing whose names appear on the following service lists:

1. Master Service List, dated (date).,

2. Subproceeding No._Ser-vice List, dated (date).

The documents served are as follows:

1. Certificate of Service;

2.

3.

Dated: __

(Signature of Attorney)

Attorney at Law

NOTICE RE: DISCOVERY

PLEASE TAKE NOTICE THAT the following interrogatories (requests for production) (requests for admissions)(answers and responses) were served upon (name of person), attorney for (name of party), on -,19-

1.

2.

Any person requesting, a copy of the same should direct his or her request in writing to the undersigned.

Dated: _

(Signature of Attorney)

Attorney at Law

DECISION AND ORDER RE UNITED STATES’ MOTIONS FOR PARTIAL DISMISSAL

Subproceeding No. 86-5

(July 29, 1988)

The United States has moved pursuant to Rules 12(b)(1) and 12(b)(6), Federal Rules of Civil Procedure for dismissal of Subparagraphs 2(a)-(f) of the Makah and Tulalip Tribes’ Cross Request for Determination, of Paragraphs A-E of the Point-No-Point Treaty Tribes’ Cross Request for Determination, and of Paragraphs la and Id of Part D of the Upper Skagit Tribe’s Cross Request for Determination.

The portions of the respective Cross Requests for Determination objected to by the United States are essentially the same. Accordingly, the court sets forth only the disputed sections of the Cross Request for Determination of the Makah and Tulalip Tribes although the court intends its rulings herein to apply to each of the disputed provisions filed by the respective tribes. Paragraphs 2(a)-(f) of the Cross Request for Determination of the Makah and Tulal-ip Tribes request:

Pursuant to ¶ 25 of the Injunction of March 22, 1974, 384 F.Supp. at 413, 419 and by way of response and affirmative defense to the allegations and conclusion contained in the Southern Tribes’ Request for Determination filed September 8, 1986, responding tribes hereby request as follows:

(a) That the court determine the legal principles and guidelines (and shares if necessary) for determination of the equitable apportionment of harvestable coho among all tribes having rights under the treaties which are the subject matter of this case, including but not limited to all other tribes which are parties to this litigation, including, specifically, the tribes of the Quinault Treaty Area (the Quinault, Quileute, and Hon Tribes) and the Yakima Indian Tribe.

(b) That the court determine the legal principles and guidelines (and shares if necessary) for determination of equitable apportionment of all other stocks and species passing through or bound for the usual and accustomed places of any treaty tribe party to this litigation, including but not limited to all stocks of salmon bound for Puget Sound waters and Washington coastal streams.

(c) That the court determine the legal principles and guidelines (and shares if necessary) of all salmon species and stocks passing through usual and accustomed places of tribes party to this litigation bound for the Columbia River system, including specifically the equitable shares of the Yakima Tribe in such stocks.

(d) That the court determine the legal principles and guidelines (and specific shares if necessary) to determine equitable apportionment of all salmon stocks harvested in terminal areas and rivers within the case area and within the Columbia River system.

(e) That the court determine the legal principles and guidelines for determination of proper escapement goals and enhancement activities (where such activities will significantly affect the harvest shares of any party tribe) with reference to all stocks of salmon bound for Puget Sound region of origin, Washington coastal region of origin, and Columbia River system region of origin.

(f) That the court direct the United States as a party to this litigation to cooperate with and assist the tribes in achieving a negotiated settlement of allocation issues, if possible, and direct and enjoin the United States from taking any actions in domestic or international regulatory areas which will adversely affect intertribal allocation agreements and management plans which may be determined in this proceeding.

A. Jurisdiction of Columbia River Runs.

The United States concedes that Columbia River origin fish are subject to this court’s jurisdiction as they pass through the fishing places of the tribes parties to this case other than the Yakima Tribe. The United States objects to those provisions of the various counter or cross-requests for determination seeking to have this court assume jurisdiction to decree the comprehensive allocation of, and the governing principles for management and enhancement activities for, Columbia River runs for all entities claiming an entitlement to a share of those runs whether or not they are parties to this case.

By order filed March 4, 1971 the Confederated Tribes and Bands of the Yakima Indian Nation were granted leave to intervene as plaintiffs in United States v. State of Washington “to the limited extent of their asserted fishing rights in streams ■within the Puget Sound drainage system.” The United States contends that the Yakima’s limited intervention was to confirm their claim of right to fish the Cascade Mountain streams that drain westward into Puget Sound.

In United States v. State of Washington, 384 F.Supp. 312, 400 (W.D.Wash.1974), the subject matter jurisdiction of this action was limited as follows:

7. This case is limited to the claimed treaty-secured off-reservation fishing rights of the Plaintiff tribes as they apply to areas of the Western District of Washington within the watersheds of Puget Sound and the Olympic Peninsula north of Grays Harbor, and in the adjacent offshore waters which are within the jurisdiction of the State of Washington. The subject matter of this case is limited to the application of those rights to the anadromous fish which are in the waters described, including such fish as are native to other areas.

The court’s jurisdiction was subsequently expanded to include Grays Harbor and its watershed. United States v. State of Washington, 459 F.Supp. 1020, 1097 (W.D.Wash.1978).

Relying upon these orders in United States v. State of Washington, the United States contends:

The Tulalip Tribes’ Cross-Request sub-paragraph (a) at pp. 6-7 asks that the court ‘determine the legal principles and guidelines (and shares if necessary) for [apportioning coho] among all tribes having rights under the treaties which are the subject matter of this case, including * * * specifically * * * the Yakima Indian Tribe.’ The Yakima Tribe’s only active coho fishery is an in-river fishery on Columbia River coho, a subject that is specifically outside court-imposed limitation on that tribe’s intervention in this case.... That tribe has not been granted party status in this case to litigate its treaty rights with respect to the Columbia River runs, a subject which it was (and still is) already litigating in the United States District Court for Oregon. United States v. Oregon, et al., No. 68-513. Other tribes not parties to this case also have rights to those coho under treaty clauses virtually identical to the Yakima’s treaty. Cross-request (b) seeks a similar determination for all other stocks and species ‘bound for the usual and accustomed places of any treaty tribe party to this litigation * * The Yakima Tribe is a party to this litigation but is subject to the above court-imposed limitation. The court should modify cross-requests (a) and (b) to exclude determination of the shares of the Yakima and any nonparty treaty tribe except as those tribes may voluntarily consent to participate in the mediation....

Cross-request (c) seeks a similar determination for all salmon species and stocks ‘bound for the Columbia River system, including specifically the equitable shares of the Yakima Tribes in such stocks.’ Our same objection applies to this cross-request and the court should delete the last 12 words of paragraph (c) and provide that the remaining portion does not extend to determinations affecting nonparties or apply to Columbia River fish caught outside the case area of this case. For the same reason the court should delete the last six words of Paragraph (d) referring to salmon stocks harvested ‘within the Columbia River system.’)

Cross-request (e) seeks determination of legal principles and guidelines ‘for determination of proper escapement goals and enhancement activities * * * with reference to all stocks of salmon bound for * * * [the] Columbia River system region of origin.’ This is completely beyond the jurisdiction of this court in this case and dismissal is required by Rule 12(b)(6) due to the inability to join indispensable parties. Such parties include, in addition to the Columbia Basin Indian Tribes, the States of Oregon and Idaho and the United States none of whom has consented to be sued in this case with respect to its Columbia Basin enhancement activities.

The tribes do not present any argument contravening the United States’ specific jurisdictional objection. Rather, it is argued that inclusion of the Columbia River runs in this subproceeding will foster more practical and thorough intra-tribal allocation. Thus, is is contended:

Tribal ocean fisheries in the case area are often severely limited by the nature or status of Columbia River runs. The status of those runs is directly affected by actions of the Yakima Tribe over which the resquesting [sic] tribes have no control. Again, since this is essentially a closed system, the nature and status of Columbia River runs must be considered in determining an equitable apportionment of coho runs (or any other runs) bound for the south Sound. For example, a tribe might be willing to discuss a reduced share of south Sound coho in return for a greater share of Chinook salmon bound for the Columbia River. This is simply an example of the possible trade-offs and adjustments that might be made in determining an equitable apportionment.

Although understandable, this argument is beside the point. The United States’ jurisdictional concerns set forth above are well taken. The assumption of jurisdiction by the court over the Columbia River runs will usurp the jurisdiction of another district court, expand this court’s jurisdiction wholly beyond that contemplated when this action was instituted, and interfere with sovereign immunity.

Consequently, this aspect of the United States’ motion to dismiss should be granted, the tribes being directed to amend their cross-requests for determination as set forth by the United States supra.

B. United States’ Sovereign Immunity.

The United States moves to dismiss Subparagraph 2(f) on the ground that the court lacks subject matter jurisdiction to enter the order requested therein because the United States has not waived its sovereign immunity from suits or claims, whether cross or counter, directed against the United States or the activities of the United States by bringing United States v. Washington of which this subproceeding is a part.

The United States instituted this action in September, 1970 on its own behalf and as trustee for the various tribes against the State of Washington and others seeking declaratory judgment concerning off-reservation treaty right fishing within the case area by the tribes and for injunctive relief to provide enforcement of those fishing rights as judicially determined.

As a general rule, the United States does not waive its sovereign immunity by instituting the action in which a party asserts a claim for affirmative relief against the United States. United States v. City of Los Angeles, 595 F.2d 1386, 1389 (9th Cir.1979).

The responding tribes argue that this general rule does not apply to this action. In so arguing they refer the court to United States v. State of Oregon, 657 F.2d 1009, 1012-1016 (9th Cir.1981). There, the Ninth Circuit affirmed the issuance of a preliminary injunction virtually banning fishing by the Yakima Tribe which tribe had intervened as a party plaintiff. The Ninth Circuit held that the Yakima Tribe had waived its sovereign immunity by its intervention and its express consent to suit. The Ninth Circuit ruled at 1014-1016:

Intervenors under Fed.R.Civ.P. 13(a)(2), such as the Yakima Tribe, enter the suit with the status of original parties and are fully bound by all future court orders .... By successfully intervening, a party ‘makes himself vulnerable to complete adjudication by the federal court of the issues in litigation between the inter-vener and the adverse party.’...

Here, the Tribe intervened to establish and protect its treaty fishing rights; a basic assumption of that action was that there would be fish to protect. Had the original decree found the species to be in jeopardy, and enjoined all parties from future fishing in order to conserve the species, the Yakimas could not have then claimed immunity from such an action. Otherwise, tribal immunity might be transformed into a rule that tribes may never lose a lawsuit.

The only difference here is the court retained post-judgment jurisdiction to modify its decree. Retention of jurisdiction is characteristic of equitable decrees .... As Mr. Justice Frankfurter stated, an equitable injunction is ‘ “permanent” only for the temporary period for which it may last.’ ... To hold at this stage that tribal immunity blocks modification of an equitable decree would impermissibly violate a central tenet of equity jurisprudence, that of flexible decrees. By seeking equity, this Tribe assumed the risk that any equitable judgment secured could be modified if warranted by changed circumstances. By intervening, the Tribe assumed the risk that its position would not be accepted, and that the Tribe itself would be bound by an order it deemed adverse. The Tribe argues, however, that United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940) [USF & G] supports their position. In USF & G, the Court held that tribal immunity barred a compulsory counterclaim in excess of the original claim. See also Chemehuevi Indian Tribe v. California State Bd. of Equalization, 492 F.Supp. 55, 57-59 (N.D.Cal.1979). The tribe analogizes the present injunction to the counterclaim in USF & G; it claims that, by entering the suit, it was entitled either to an injunction in its favor or no relief at all. It argues that an injunction against the tribe was not among the possibilities initially risked and hence this later injunction was more like the barred counterclaim in USF & G.

We think this misconceives the basic nature of the underlying action. The original action, by seeking a declaration of treaty fishing rights, sought to apportion the Columbia River anadromous fishery among competing sovereigns. It thus has been recognized as analogous to an equitable action in rem. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 690 n. 32, 99 S.Ct. 3055, 3078, 61 L.Ed.2d 823 (1979); United States v. Washington, 520 F.2d 676, 687 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976); United States v. Crookshanks, 441 F.Supp. 268, 270 (D.Or.1977) (contempt proceeding for violation of decree at issue here). In such an action, ‘a court possessed of the res in a proceeding in rem, such as one to apportion a fishery, may enjoin those who would interfere with that custody.’ Washington v. Washington Commercial and Passenger Fishing Vessel Ass’n, 443 U.S. 658, 692 n. 32, 99 S.Ct. 3055, 3078, 61 L.Ed.2d 823 (1979).

The responding tribes argue that since the United States’ sovereign immunity is coextensive with that of the tribes, the rule of United States v. State of Oregon, supra, is equally applicable to it.

The United States replies that the rule of United States v. State of Oregon is not applicable to the United States relative to the dispute at issue in this subproceeding. The issue in this subproceeding involves the allocation among the tribes of the treaty share determined in this action. The United States contends: “It is true that this court has asserted certain jurisdiction in this case over the res — the fish runs. But that jurisdiction is limited to determining the rights inter se of the state and tribal parties to this case within the scope of their authorized participation in the case.”

The court is inclined to conclude pursuant to United States v. State of Oregon that the United States may have waived its sovereign immunity. However, the cross-request for determination is too broad and too vague for the court to finally resolve the issue.

In any event, the court will not exercise its jurisdiction and compel the United States to cooperate and assist in the mediation process. The arguments presented by the United States against such an order are, in the court’s opinion, persuasive and compelling. Moreover, the court will not “direct and enjoin the United States from taking any actions in domestic or international regulatory arenas which will adversely affect intertribal allocation arguments and management plans which may be determined in this proceeding” as part of any order in connection with this subproceeding. As the United States argues, questions of United States’ compliance with other laws relative to any eventual resolution of the subproeeeding is not an issue in this subproceeding.

ACCORDINGLY, the United States’ motions for partial dismissal are granted as set forth herein.

ORDER DENYING MOTION TO DISQUALIFY

Sub-proceeding No. 86-5

(November 12, 1988)

On Tuesday, October 11, 1988 the court heard by telephone conference call the Motion to Disqualify Mason D. Morisset and the firm of Pirtle, Morisset, Schlosser & Ayer filed by the Lummi Indian Tribe. The court orally denied the motion on the ground that while a conflict of interest exists, it has been waived. The purpose of this order is to memorialize the court’s ruling and the reasons therefor.

By this motion the Lummi Indian Tribe moves to disqualify Mason D. Morisset and the firm of Pirtle, Morisset, Schlosser & Ayer, counsel for the Tulalip Tribes, from any further participation in Sub-proceeding No. 86-5. As grounds for this motion the Lummis assert an unwaivable conflict of interest between Mr. Morisset’s former representation of the Lummis from 1970 to 1980 and his current representation of the Tulalips in this sub-proceeding. Specifically, the Lummis contend:

The interests of the Tulalip Tribes in this subproceeding are now actually adverse to those of the Lummi Indian Tribe. This subproceeding concerns the rights of the Lummi Indian Tribe and of the Tulalip Tribes under the Treaty of Point Elliot, which is the heart of the matters for which the Lummi Indian Tribe initially employed Mr. Morisset and his firm.

In particular, Mr. Morisset and his firm successfully established usual and accustomed fishing places in Area 8A for the Lummi Indian Tribe; now he seeks to disestablish the Lummi’s right to fish in this area.

1. Applicable Standards.

The standards governing disqualification of an attorney and his firm are set forth in Trone v. Smith, 621 F.2d 994, 998-1000 (9th Cir.1980):

The relevant test for disqualification is whether the former representation is ‘substantially related’ to the current representation.

[T]he underlying concern is the possibility, or appearance of the possibility, that the attorney may have received confidential information during the prior representation that would be relevant to the subsequent matter in which disqualification is sought. The test does not require the former client to show that actual confidences were disclosed. That inquiry would be improper as requiring the very disclosure the rule is intended to protect ... The inquiry is for this reason restricted to the scope of the representation engaged in by the attorney. It is the possibility of the breach of confidence, not the fact of the breach, that triggers disqualification.

... The substantial relationship test does not require that the issues in the two representations be identical.

The relationship is measured by the allegations in the complaint and by the nature of the evidence that would be helpful in establishing those allegations.

In Trust Corp. of Montana v. Piper Aircraft Corp., 701 F.2d 85, 87 (9th Cir.1983), the Ninth Circuit recognized that disqualification on this ground is subject to waiver:

Generally, when the district court finds a substantial relationship the attorney should be disqualified. However, the former client may expressly or impliedly waive his objection and consent to the adverse representation....

It is well settled that a former client who is entitled to object to an attorney representing an opposing party on the ground of conflict of interest but who knowingly refrains from asserting it promptly is deemed to have waived that right.

However, the party seeking to avoid an otherwise proper disqualification has the burden of making a clear showing of the facts from which a finding of waiver may flow. Paul E. Iacono Structural Engineer, Inc. v. Humphrey, 722 F.2d 435, 443 (9th Cir.), cert. denied sub nom. Construction & General Laborers Union Local 304 v. Paul E. Iacono Structural Engineer, Inc., 464 U.S. 851, 104 S.Ct. 162, 78 L.Ed.2d 148 (1983).

2. Substantially Related.

The scope of the litigation in United States v. State of Washington is set forth in the Boldt decision at 384 F.Supp. 312 (W.D.Wash.1974). The action was prosecuted by the United States on its own behalf and as trustee for several Western Washington Indian Tribes and a number of intervenor tribes, one of which was the Lummis, against the State of Washington, the State Department of Fisheries, the State Game Commission and the Washington Reef Net Owners Association. The plaintiffs sought declaratory relief concerning off reservation treaty right fishing by the plaintiff tribes within that portion of the State of Washington west of the Cascade Mountains and north of the Columbia River drainage area, including the American portion of the Puget Sound watershed, the watersheds of the Olympic Peninsula north of the Grays Harbor watershed and the offshore waters adjacent to those areas. Plaintiffs further sought injunctive relief to provide enforcement of those fishing rights as they previously had been or were judicially determined in the action. Id. at 327-328. In the course of resolving this issue raised by the complaint, Judge Boldt explained:

An exclusive right of fishing was reserved by the tribes within the area and boundary waters of their reservations, wherein tribal members might make their homes if they chose to do so. The tribes also reserved the right to off reservation fishing ‘at all usual and accustomed grounds and stations’ and agreed that ‘all citizens of the territory’ might fish at the same places ‘in common with’ tribal members. The tribes and their members cannot rescind that agreement or limit non-Indian fishing pursuant to the agreement. However, off reservation fishing by other citizens and residents of the state is not a right but merely a privilege which may be granted, limited or withdrawn by the state as the interests of the state or the exercise of treaty fishing rights may require.

The tribes reserved the right to fish at ‘all usual and accustomed grounds and stations.’ The words ‘grounds’ and ‘stations’ have substantially different meanings by dictionary definition and as deliberately intended by the authors of the treaty. ‘Stations’ indicates fixed locations such as the site of a fish weir or a fishing platform or some other narrowly limited area; ‘grounds’ indicates larger areas which may contain numerous stations and other unspecified locations which in the urgency of treaty negotiations could not then have been determined with specific precision and cannot now be so determined. ‘Usual and accustomed,’ being closely synonymous words, indicate the exclusion of unfamiliar locations and those used infrequently or at long intervals and extraordinary occasions. Therefore, the court finds and holds that every fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the then usual habitat of the tribe, and whether or not other tribes then also fished in the same waters, is a usual and accustomed ground or station at which the treaty tribe reserved, and its members presently have, the right to take fish.

Id. at 332. Judge Boldt then determined the usual and accustomed grounds of a number of specific tribes, including the Lummis. With respect to the Lummis, Judge Boldt .held:

[T]he usual and accustomed fishing places of the Lummi Indians at treaty times included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay. Freshwater fisheries included the river drainage systems, especially the Nooksack, emptying into the bays from Boundary Bay south to Fidalgo Bay.

Id. at 360.

As Mr. Morisset so aptly puts it, United States v. State of Washington has taken on a life of its own since the Boldt decision, spawning numerous sub-proceedings to the main action, including Sub-proceeding No. 86-5. Sub-proceeding No. 86-5 is captioned “North-South Sound Treaty Allocation,” and generally involves questions concerning the rights of various tribes, including the Lummis and the Tulalips, to fish in certain locations relative to each other. Resolution of Sub-proceeding No. 86-5 is currently being addressed by mediation.

Mr. Morisset argues that his prior representation of the Lummis is not substantially related to his representation of the Tulalips in Sub-proceeding No. 86-5:

In the 1970s, the Ziontz firm represented the Lummi Tribe (and worked as co-counsel with lawyers for many other tribes) to establish the general treaty fishing right for all tribes and to delineate in very general terms the extent of the tribes’ usual and accustomed fishing places. The legal analysis and evidence supporting those claims, asserted against the State of Washington, have no relevance to an intertribal dispute with respect to the primary rights of one tribe as against another or with respect to equitable allocation principles. There was nothing in the original complaint and nothing in the original litigation that involved evidence or required investigation of the rights of one tribe against another in overlapping usual and accustomed areas. And there is nothing in the charges brought by the Tulalips here that questions or seeks to reopen the prior adjudication of the Lummis’ usual and accustomed fishing places.

Mr. Morisset’s disclaimer that the Tulal-ips do not seek to challenge Judge Boldt’s determination of the Lummis’ usual and accustomed fishing grounds is not supported by the record herein and. appears to be a belated attempt to dilute the potential conflict of interest. In the Tulalip Memorandum in Support of Motion for Preliminary Injunction re Lummi Fishing in Area 8A received by the court on September 22, 1988, the Tulalips, in the course of arguing that serious questions are raised in the sub-proceeding, contended:

First is the question of whether the Lummi Tribes have usual and accustomed fishing places in Area 8A at all. Unlike more detailed findings which have become the norm in the later determinations as to usual and accustomed places, the finding concerning the Lum-mi Tribe, like most of the original findings in Final Decision No. 1, is very-brief and vague....

Whether such a general finding was intended to include an area somewhat removed from Seattle such as Port Gardner and Port Susan (current WDF Area 8A) is questionable.

In the court’s opinion, the fact that Mr. Morisset made this argument establishes that the two representations are substantially related notwithstanding his subsequent disclaimer of intent.

3. Prejudice to Tulalips.

Mr. Morisset argues that the court must consider the real prejudice to the non-moving party in disqualifying its attorney in resolving a motion to disqualify on the ground of conflict of interest arising out of a prior representation.

None of the cases cited in support of this argument are from the Ninth Circuit. However valid Mr. Morisset’s concerns are about the prejudice to the Tulalips if he and his firm are disqualified from this sub-proceeding and the effect of such a ruling on the continued litigation of United States v. State of Washington and its related matters, the Ninth Circuit accords no weight to them in determining whether an attorney should be disqualified if the matters are substantially related. See Trone v. Smith, supra at 1002.

4. Waiver.

Mr. Morisset further argues that even if the court concludes that the two representations are substantially related, the Lum-mis have waived their rights to raise it.

The Lummis respond that the conflict of interest in this subproceeding cannot be waived:

Mr. Morisset and his firm were general counsel for the Lummi Indian Tribe for over ten years. During this time, as shown by the multiplicity of actions listed on the bills attached to the Williams affidavit, the firm and its partners, and especially Mr. Morisset and Mr. Pirtle, were privy to every legal confidence of the Lummi Indian Tribe. There were constant conversations and meetings between the attorneys and Lummi leaders. Thousands of lawyer hours were expended on Lummi business. Now this res gestae of knowledge is to be used against the Lummi Indian Tribe. In the context of the purposes behind the Rules of Professional Conduct and the Canons of Ethics, and in the context of this subproceeding, this is a conflict of interest that cannot be waived.

In the absence, however, of any authority cited by the Lummis holding that the magnitude of the prior representation renders a conflict of interest non-waivable as a matter of law, the court does not find the Lummis’ argument persuasive in the light of Ninth Circuit authority holding that a client may waive the conflict.

The Lummis further argue that no waiver of the conflict of interest can be found in connection with this sub-proceeding because Rule 1.9(a), Rules of Professional Conduct, adopted effective September 1, 1985 in 104 Wn. 2d 1101 (1985), has not been shown to have been complied with. Rule 1.9(a) provides:

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) Represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interest of the former client unless the former client consents in writing after consultation and a full disclosure of the material facts....

The court concludes, however, that Rule 1.9(a) is not a rule precluding an implied waiver of the conflict of interest, but merely a rule setting forth a standard of professional conduct.

In so arguing that a waiver has occurred, Mr. Morisset avers in his declaration received by the court on October 5, 1988:

9. In September 1980 I filed a petition to review and redesignate the Tulalip Indian Tribes usual and accustomed places pursuant to Judge Boldt’s order permitting revision of the usual and accustomed boundaries drawn in his 1975 [sic] order. The Tulalips asserted rights to usual and accustomed places as far north as [the] Canadian border, including the San Juan Islands where the Lummis also have adjudicated usual and accustomed places and including most other areas claimed by that tribe.

Mr. Morisset refers the court to the transcript of a hearing on May 19, 1982 in the sub-proceeding in United States v. State of Washington referred to in his declaration, apparently Sub-proceeding No. 80-1, involving among others Mr. Morisset on behalf of the Tulalips and Mr. Raas on behalf of the Lummis. The transcript states in pertinent part:

THE COURT: All right, well, now, we still have Mr. Raas’ possible objection to Mr. Morisset’s representation of the Tu-lalips.

MR. RAAS: Yes, Your Honor, that is correct. My clients have instructed me to challenge Mr. Morisset’s firm’s representation of the Tulalips in this matter, principally on the grounds that the firm represented the Lummi Tribe during the establishment of the Lummi usual and accustomed places through a number of proceedings to set those U and A places. The tribe believes that—

THE COURT: Isn’t it possible that the two of you could resolve this?

MR. RAAS: I would certainly hope that we could endeavor to do that. I am not confident of convincing my clients, but I would say that within three weeks that I would be able to file that motion if we can’t work something out.

THE COURT: Well, temporarily Mr. Morisset is still the counsel of record, and I will continue him in that role, and I think what I will do is reserve your right to oppose his representation, if you can set forth some area where the conflict would make it improper for him to continue in representing the Tulalips. MR. RAAS: That is fine, Your Hon- or....

Mr. Morisset further avers in his declaration:

11. Subsequent to Mr. Raas’ announcement in open court, a full review of the matter was undertaken by the Ziontz firm. My partner Mr. Alvin Ziontz specifically reviewed the matter and the Lummi files in the office and transmitted them to Mr. Raas. A conference was held with Mr. Raas and he accepted the files on behalf of the Lummi Tribe. It was my understanding that the matter was settled.

12. Subsequent to the transmittal of files the Lummis did not file a motion to disqualify. The Lummi Tribe made no formal objections to continued representation of the Tulalips.

13. The Tulalip usual and accustomed litigation continued with the two tribes in an advisory position. The matter finally came on for trial in 1985. The Tulalips were able to settle their differences with all tribes except the Lummis. Thus, the trial pitted the Tulalips and the Lummis on opposite sides of the question raised by the Tulalip petition. The Lummis fully participated in that trial through their counsel Mr. Raas, put on witnesses, cross examined Tulalip witnesses, and filed briefs in opposition to the Tulalip claim. Subsequently on appeal the Lummis filed briefs in opposition to the Tulalips claim. The Tulal-ips claim was finally upheld by the Ninth Circuit. 841 F.2d 317 (9th Cir.1988).

The Lummis respond that their waiver in Sub-proceeding No. 80-1 is limited to that sub-proceeding and cannot constitute an effective waiver of the conflict of interest at issue here in any other sub-proceeding commenced in United States v. State of Washington.

In so arguing, the Lummis urge the court to characterize each sub-proceeding filed in United States v. State of Washington as an entirely separate lawsuit from any other sub-proceeding.

The court cannot entirely agree with this characterization. Judge Craig’s order filed May 22,1985 instituted the sub-proceeding numbering system in order to assist the court and the parties to United States v. State of Washington in the organization and administration of the main case. While Judge Craig indicates that each “distinct dispute” will be assigned a separate sub-proceeding number, it is clear that the distinct disputes are those arising within the ambit of the main case. From the court’s own experience, at least during the fisheries, often the only distinction among disputes is the year in which they arise. Consequently, the court does not find the Lummis’ separate lawsuit analysis persuasive in the context of this action.

Moreover, to the extent that it can be inferred from Mr. Kinley’s declaration that September 16, 1988 was the first time the Lummis became aware that the Tulalips contested any right of the Lummis to fish in Area 8A, the record before the court in United States v. State of Washington belies the inference. Sub-proceeding No. 87-4 involved the Tulalips’ request for an injunction enjoining the Lummi from authorizing or engaging in steelhead fishing in Area 8A. Although the Tulalips’ memorandum in support of the request was grounded upon the assertion that fishing by the Lummi in Area 8A would be in violation of the Order Adopting Steelhead Management Plan set forth at 459 F.Supp. 1020, 1118 (W.D.Wash.1978) and the Order Approving Mediation entered as Docket No. 10785 on September 21,1987, the transcript of the hearings held on December 9 and 10,1987 states in pertinent part:

MR. MORISSET: The issues here are, essentially, two. That is, the participation in steelhead planning in developing a management plan and so on. And, secondly, the fishing by the Lummi tribe in Area 8A at all.

The history on this is important. Area 8A is the front yard of the Tulalip tribe and, to a certain extent, the front yard, a little bit farther removed, to the Fillami [sic] tribe. The Lummis have never fished in this area and have not participated in the co-management with the State over the years over the development of the numbers relative to the steelhead fishery.

THE COURT: Let’s accept both of those to be a fact, Mr. Morisset. Does that mean that the Lummis have no rights to fish there if the management plan could be drawn up to allow them to fish or to set forth their rights?

MR. MORISSET: Mr. Raas, in his brief, stated that the Lummis have an absolute right to fish in Area 8A. We want to make it clear that we do not agree and accept that statement at all. We don’t believe that anyone has an absolute right to fish anywhere and, certainly, don’t agree that the Lummis have an absolute right to fish in 8A.

In addition, the Tulalips on two other occasions sought injunction relief to preclude the Lummis from fishing in Area 8A. See Sub-proceedings Nos. 86-10 and 87-2.

The Lummis argue that the other sub-proceedings in which the Tulalips challenged their right to fish in Area 8A cannot form the basis for a waiver of the conflict of interest because the sub-proceedings did not directly contest the Lum-mis’ usual and accustomed rights. The court, however, cannot accept this argument. It is clear from the above-quoted transcript that the Tulalips challenged the absolute right of the Lummis to fish in Area 8A, an absolute right which can only arise if the area is within a tribe’s usual and accustomed area.

Finally, the Lummis contend that a waiver of the conflict of interest cannot be found because the motion to disqualify was not interposed for the purpose of causing prejudicial delay, such as causing a continuance of a trial date. In so arguing the Lummis imply that cases finding a waiver would not have done so if the motions to disqualify had been more timely.

While the court agrees that the timing of a motion to disqualify may be a relevant factor in determining waiver, the court cannot agree that the timing of the motion before the court is of no consequence. Frankly, it has been obvious to the court since the institution of Sub-proceeding No. 87-4 that the Tulalips challenged the legal right of the Lummis to fish in Area 8A. It is also clear that the Lummis recognized and disregarded the conflict of interest arising from Mr. Moris-set’s representation in 1980. However, it is not until the court is on the eve of attempting to resolve yet another injunc-tive action involving the Lummis’ right to fish in Area 8A that the motion to disqualify is brought. More importantly, it is brought in the sub-proceeding instituted in 1986 to resolve by mediation the intra-tribal rights to fish. Knowing as the Lum-mis did in 1980 of this conflict of interest and knowing that the Whole purpose of Sub-proceeding No. 86-5 is to resolve either by mediation or litigation, the court can only look upon the Lummis’ motion to disqualify as a very belated attempt to gain a tactical advantage in this sub-proceeding.

Consequently, the Motion to Disqualify Mason D. Morisset and the firm of Pirtle, Morisset, Schlosser & Ayer is denied.

ORDER ADOPTING THE SPECIAL MASTER’S REPORT AND RECOMMENDATION

Sub-proceeding No. 85-1

(February 25, 1989)

This court referred the above-referenced dispute to Special Master Robert E. Cooper on July 17,1987. Special. Master Cooper filed his Report and Recommended Findings of Fact and Conclusions of Law as the final adjudication of the Suquamish Tribe’s request for determination on August 1,1988.

The court has reviewed the Suquamish Tribe’s objections to the Special Master’s report and recommendation, the responses thereto by the United States, the Lummi Indian Tribe, the Tulalip Tribe, the Muck-leshoot Indian Tribe, the transcript of the proceedings before the Special Master, the Muckleshoot Indian Tribe’s Motion for Order Adopting the Special Master’s Report, Findings of Fact and Conclusions of Law and For Judgment Pursuant to Fed. R.Civ.P. 54(b) and all other pertinent pleadings. On February 6, 1989 the court conducted a hearing with respect to the Suquamish Tribe’s objections pursuant to Rule 53(e)(2), Federal Rules of Civil Procedure. Based on this review, it is ORDERED that:

(1) The Suquamish Tribe does not have the status of political suecessor-in-inter-est to the treaty-time Duwamish Tribe.

(2) This order constitutes a final judgment, there being no just reason for delay.

IT IS FURTHER ORDERED that this Court fully adopts the Report and Recommended Findings of Fact and Conclusions of Law of Special Master Robert E. Cooper filed on August 1, 1988. These Findings and Conclusions are as follows:

FINDINGS OF FACT

384.The Duwamish and Suquamish tribes, among 20 others, were parties to the Treaty of Point Elliott. 12 Stat. 927. When identifying tribes for purposes of treating with the Indians of western Washington, the United States, through Governor Stevens and the treaty commission, often grouped or consolidated small tribes or bands that had no formal political structure into larger tribal units that became the political entities with which the United States negotiated the treaties. United States v. Washington, 384 F.Supp. 312, 354-55 (W.D.Wash.1974), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), reh’g denied, 424 U.S. 978, 96 S.Ct. 1487, 47 L.Ed.2d 750 (1976); Tr. 27. The treaty signatory Duwamish Tribe was composed by the United States in 1855 to include smaller, autonomous bands or tribes situated on the east side of Puget Sound in the vicinity of Lake Washington, the Cedar and Black rivers, and the lower White River (now called the Duwamish) below its junction with the Green River. United States v. Washington, 476 F.Supp. 1101, 1104-1105 (W.D.Wash.1979), aff'd, 641 F.2d 1368 (9th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982); Ex. SU-SM-24, at 1-2; Tr. 26-27. Generally, the Duwamish Indians occupied the environs of present-day Seattle and Renton, although the term was sometimes used in a broader sense to refer to Indians occupying the Duwamish River drainage as a whole. The circumstances surrounding the negotiation of the treaties indicate that the United States intended the Du-wamish Tribe to be an independent treaty party and to function as the tribal representative of the bands subsumed under the name Duwamish, thereby ensuring a complete cession of Indian-held lands in the Duwamish River drainage. Ex. USA 102, at 3-4, 22-23.

385. The freshwater usual and accustomed fishing places of the Duwamish Indians at treaty times included, but were not limited to, Lake Washington, Lake Union, Lake Sammamish, the Black and Cedar rivers, and the lower White (or Du-wamish) River below its junction with the Green River. Tr. 76-77; Ex. USA 102, Appendix 1. All of these water bodies and courses are situated to the east of Puget Sound.

386. Seattle was identified as chief of the Duwamish and Suquamish tribes in the Treaty of Point Elliott. See United States v. Washington, 476 F.Supp. at 1104 (F.F. No. 13). Seattle’s mother was Duwamish and his father was Suquamish, Ex. G-4, at 185; it is therefore likely that he had close connections with both tribes. The identification of Seattle as “Chief of the Duwamish and Suquamish” by the treaty commission does not signify that he in fact had political authority to govern the Duwamish people. Dr. Lane has stated that Seattle’s title “did not reflect either realities of indigenous political organization nor the treaty commission’s understanding of native political organization.” Ex. USA 102, at 23. See Washington v. Washington Commercial Passenger Fishing Vessel Ass’n [‘Fishing Vessel”], 443 U.S. 658, 664 n. 5, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); United States v. Washington, 520 F.2d 676, 682 (9th Cir.1975) (Stevens “selected ‘chiefs’ from each tribe with whom to bargain.”); Tr. 31, 142-43; Ex. USA 20, at 8. Seattle’s status as nominal chief of the Duwamish and Suquamish does not indicate that the United States intended to consolidate those two entities into one tribe by virtue of Seattle’s dual capacity.

387. The treaty commission intended that the Duwamish Tribe would be placed temporarily on the Port Madison Reservation also sometimes referred to as Fort Kitsap), which is located on the Kitsap Peninsula on the west side of Puget Sound across from Seattle. The commission also originally intended that the Duwamish would later be removed with all other western Washington tribes to a general reservation at Tulalip, near the mouth of the Snohomish River. Ex. USA 102, at 2-3. The Port Madison Reservation was established pursuant to Article II of the Treaty of Point Elliott and was also intended to serve as a home for the Su-quamish Indians, in whose territory it was situated. No separate reservation was established by the treaty for the Duwamish in their own territory on the east side of Puget Sound. There is no evidence that any action was taken by the United States concurrently with the negotiation of the treaty in 1855 to implement the general plan to relocate the Duwamish Indians to Port Madison.

388. During the fall of 1855, certain Indians situated in the upper reaches of the Duwamish River drainage, principally along the Green and White rivers, attacked white settlements in the area. Tr. 33-34. For the most part, the Duwamish Indians were not among the combatants. However, to sequester them from the hostile Indians, the United States in the winter of 1855-56 relocated the Duwamish from their east side villages to Bainbridge Island on the west side of Puget Sound. This removal of the Duwamish prior to ratification of the treaty was a response to the immediate exigency, rather than an effort by the government to implement the treaty commission’s earlier plan to relocate the Duwamish to Port Madison. Tr. 34-36.

389.The court has previously found that the Duwamish Indians objected to being removed from their traditional locale to the Port Madison Reservation. United States v. Washington, 476 F.Supp. at 1105 (F.F. No 14). Like a number of other tribes in the region, the Duwamish evidenced a strong attachment to their ancestral villages and lands and resisted the government’s plan to remove them from their territory. Tr. 71-71; Ex. 102, at 6, 17. Beyond attachment to their own lands, the treaty-time Duwamish expressed a general animosity of uncertain origin toward the Suquamish. This attitude persisted even though the Duwamish were intermarried with the Suquamish, among other tribes, and had other cultural contacts with Suquamish people. In August, 1857, the federal Indian agent responsible for both the Duwamish and Su-quamish tribes reported to the Superintendent of Indian Affairs, Washington Territory, as follows concerning the Du-wamish attitude toward the Suquamish and his resultant inability during the preceding year to unite the two tribes:

[T]he most unamicable feelings have long existed between these two tribes [Duwamish and Suquamish]; this feeling is so deep rooted that, when the friendly portion of the D’Wamish Tribe were directed, by their agent during the war to move to this [Fort Kitsap] reservation, they absolutely refused to comply with the order. They were, however, finally persuaded to move to a point on Bain-bridge Island, about eight miles from the reservation occupied by the Suquamish, where they remained until the close of the war.

Their refusal to comply with the requests of their agent naturally caused them to be looked upon as little better than the hostiles, but it must be borne in mind that they were not only required to leave their own lands, but to move upon lands owned and occupied by Indians whom they regarded with feelings of hatred.

On assuming the duties of this agency I was instructed by the then superintendent to use my exertions to bring about an amicable feeling between these two tribes and,