United States v. Washington (19 F. Supp. 3d 1126, 1994)

TABLE OF CONTENTS

ORDER PAGE

Order Denying Summary Judgment re: Certain Species and Deep-Water Harvest (1/14/94) 1128

Order Clarifying Prior Order Denying Summary Judgment re: Certain Species and Deep-Water Harvest (2/1/94) 1131

Order Denying Cross-Motions for Summary Judgment (2/7/94) 1131

Consent Decree Regarding Shellfish Sanitation Issues (5/4/94) 1134

Consent Decree (11/28/94) 1169

Memorandum Opinion and Order. 873 F.Supp. 1422 (12/20/94) See Appendix

COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS

(Through December 31, 1986)

ORDER DENYING SUMMARY JUDGMENT RE: CERTAIN SPECIES AND DEEP-WATER HARVEST

Subproceeding No. 89-3

(January 13, 1994)

EDWARD RAFEEDIE, District Judge.

TO ALL COUNSEL OF RECORD:

The Court has read and considered the papers supporting and opposing the state of Washington’s motion for partial summary judgement regarding certain species and deep-water harvest. The Court finds that the two theories advanced by the State of Washington are inconsistent with a proper interpretation of the Stevens Treaty. Accordingly, these theories are rejected, and partial summary judgment is DENIED.

INTRODUCTION

The State of Washington (“Washington”) has moved for partial summary judgment to establish that the right of the tribes to harvest shellfish is limited to exclude:

(1) Species that were not harvested at or before treaty time, such as shrimp, scallops, squid or abalone

(2) Shellfish harvested in deep-water areas where no harvesting occurred at or before treaty time, such as sea cucumbers, sea urchins, octopus, geoduck and crab.

Standard for Summary Judgment

Fed.R.Civ.P. 56(c) provides that summary judgment will be granted if the moving party can establish that there is “no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” British Airways Board v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978). It is the moving party’s burden to inform the Court of the basis for its belief there are no genuine issues of material fact and this may be demonstrated by pointing out an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Principles of Treaty Interpretation

According to United States v. Choctaw Nation, 179 U.S. 494, 531, 21 S.Ct. 149, 163, 45 L.Ed. 291, 306 (1900), the intentions of the parties to the treaty will control the treaty’s interpretation. In determining the intentions, a Court should look to “the words used — the words being interpreted, not literally nor loosely, but according to their ordinary signification. If the words be clear and explicit, leaving no room for doubt what the parties intended, they must be interpreted according to their natural and ordinary significance.” Id. (emphasis added).

Therefore, under the familiar cannon of statutory construction, the starting point for interpreting a statute (in this case a treaty) is the language of the statute itself and “absent a clearly expressed legislative intention to the contrary, ... [treaty] language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980); See also Sumitomo Shoji America Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (“Clear import of treaty language controls unless application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent of expectations of its signatories”).

Special canons of construction are applied to determine the meaning of Indian treaties. These canons provide that any ambiguities in language must be resolved in favor of the Indians, that the language should not be construed to the prejudice of the Indians, and that technical meanings should be avoided in favor of the understanding of the Indians. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n., 443 U.S. 658, 675-676, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 528, 8 L.Ed. 483 (1832); Winters v. United States, 207 U.S. 564, 577, 28 S.Ct. 207, 52 L.Ed. 340 (1908); U.S. v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). Finally, the Supreme Court stated in United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 49 L.Ed. 1089 (1905) that Indian treaties should not be viewed as grants of rights to the Indians, but as grants of rights from the Indians to the United States. Any rights which were not granted by the Indians to the United States were reserved by the Indians because the Indians already possessed them.

Washington Theory Number One: Species Limitation

Washington begins with a factual assertion that the Tribes did not harvest certain species of shellfish, such as shrimp and scallops (“named species”), at or before treaty time. On that basis, Washington argues that the Stevens Treaty covers only species of fish harvested at or before treaty time, and that the Tribes therefore have no treaty right respecting the named species.

The starting point in evaluating this theory is the treaty language itself:

The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, that they shall not take shell-fish from any beds staked or cultivated by citizens.

The Court has already held that shellfish are fish. Since the named species are shellfish, they are fish as well, and are covered by the treaty. There is no language in the treaty that undermines these simple propositions.

Any attempt by Washington to read such a limitation into the treaty must fail. All of the canons of treaty construction obstruct such an inference, but one such canon is particularly lethal to Washington’s theory: the “reservation of rights” canon. It is well-settled that treaties are to be construed as a grant from the Indians to the United States, not the reverse, and that any rights specified in the treaty are deemed “reserved” by the Indians. See, e.g. Winans, supra; U.S. v. Washington, 520 F.2d 676, 684 (9th Cir.1975). Pri- or to the signing of the Stevens Treaty, the Indians had the absolute right to harvest any species they desired. They had the right to harvest shrimp and scallops; whether or not they exercised that right is irrelevant. The right to fish reserved in the treaty therefore encompasses a right to harvest the named species.

This finding is consistent with the prior findings of this Court. In U.S. v. Washington, 384 F.Supp. 312, 401 (W.D.Wash.1974), Judge Boldt established as a conclusion of Law that:

[t]he right secured by the treaties to the Plaintiff tribes is not limited as to species of fish, the origin of fish, the purpose or use, or the time or manner of taking, except to the extent necessary to achieve preservation of the resource and to allow non-Indians an opportunity to fish in common with treaty right fishermen outside reservation boundaries.

Thus the law of the case as well as the principles of treaty interpretation repudiates the first theory advanced by Washington.

Washington Theory Number Two: Deep-Water Harvest

The second limit on the Tribes’ treaty rights sought by Washington relies on the “usual and accustomed grounds and stations” clause in the Stevens Treaty. Washington argues that deep-water areas are excluded as a matter of law from all Tribes’ usual and accustomed grounds, because none of the tribes engaged in deep-water harvest at or before treaty time.

Determination of each tribe’s usual and accustomed grounds requires a factual inquiry by the Court; each tribe must come forward and prove its usual and accustomed grounds and stations at the time the treaty was signed. However, Washington wishes to pre-empt some portion of this factual determination, and have the Court exclude all deep-water areas from treaty coverage. The Court declines to make such a finding.

As discussed above, prior to the signing of the Stevens Treaty, the Tribes had the absolute right to fish for whatever species they desired within their usual and accustomed grounds. Similarly, they had the absolute right to plumb any depths within those usual and accustomed grounds. Just as it is irrelevant that the Tribes chose not to harvest the named species, it is irrelevant that they could not, because of technological limitations, harvest shellfish in deep-water areas. Had it been availed of the technology, any tribe could have harvested shellfish in the deep waters of their usual and accustomed grounds, areas where they had previously fished only for anadromous fish.

Consistent with these observations, the Court concludes as a matter of law that usual and accustomed grounds and stations do not vary with the species of fish, and that the usual and accustomed grounds and stations for non-anadromous fish are coextensive with those of anadro-mous fish. And, as there is ample evidence that at least some of the tribes’ usual and accustomed grounds and stations for anadromous fish include deep-water areas, See e.g., United States v. Washington, 384 F.Supp. at 367, 369, 371, 374, the Court will not exclude deep-water areas from any determination of usual and accustomed grounds and stations in this case.

IT IS SO ORDERED.

The Clerk of the Court is directed to send copies of this Order to all counsel of record and others entitled to notice, via United States mail, immediately.

ORDER CLARIFYING PRIOR ORDER DENYING SUMMARY JUDGMENT RE: CERTAIN SPECIES AND DEEP-WATER HARVEST

Subproceeding No. 89-3

(February 1, 1994)

EDWARD RAEEEDIE, District Judge.

TO ALL COUNSEL OF RECORD:

On January 6, 1994, the Court issued an order denying summary judgment to defendants regarding the issues of certain species and deep-water harvest. The parties have interpreted the Court’s order as a grant of summary judgment in favor of plaintiffs. It was not the Court’s intention to bestow this benefit upon the non-moving party. Notwithstanding any language in the order indicating otherwise, it was the Court’s intention to reject the interpretation offered by defendants, not to adopt an alternative interpretation as a matter of law. The order was neither a grant of summary judgment, nor a partial adjudication of issues; it was merely a denial of summary judgment. Any language indicating otherwise should be disregarded. The issues raised in the summary judgment motion remain to be resolved at trial. The plaintiff tribes, all of them, must still come forward with evidence proving usual and accustomed grounds.

IT IS SO ORDERED.

The Clerk of the Court is directed to send copies of this Order to all counsel of record and others entitled to notice, via United States mail, immediately.

ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT

Subproceeding No. 89-2

(February 8, 1994)

BARBARA J. ROTHSTEIN, Chief Judge.

THIS MATTER comes before the court on cross-motions for summary judgment by the Lummi Tribe and by four other tribes regarding the Lummi Tribe’s cross request for determination regarding its usual and accustomed fishing grounds. Having reviewed the motions together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows:

I. FACTUAL BACKGROUND

This subproceeding involves the issue of whether the Lummi Tribe’s usual and accustomed fishing grounds include the Strait of Juan de Fuca, Admiralty Inlet and the mouth of Hood Canal. ' Judge Boldt made an initial determination in United States v. Washington, 384 F.Supp. 312 (1974), concerning the extent of the Lummi Tribe’s usual and accustomed fishing grounds:

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 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.

Finding of Fact 46, Final Decision No. 1, 384 F.Supp. at 360-61 (hereafter “Final Decision No. 1”).

In 1989, the Lummi Tribe issued regulations opening to Lummi tribal members fisheries in the Strait of Juan de Fuca, Discovery Bay and Admiralty Inlet and the northernmost portion of Hood Canal. Plaintiff-intervenors Skokomish, Jamestown S’Klallam, Lower Elwha S’Klallam and Port Gamble S’Klallam Tribes (“the Four Tribes”) promptly filed a request for determination by this court that the Lum-mi Tribe’s usual and accustomed areas do not include the Strait of Juan de Fuca, Discovery Bay, Admiralty Inlet or Hood Canal. The Lummi Tribe responded that it had been granted these areas in Final Decision No. 1. In the alternative, it filed a cross request for determination that these areas are included within its usual and accustomed fishing grounds.

In an order entered on February 15, 1990, Judge Coyle rejected the Lummi Tribe’s argument that the geographic scope of Judge Boldt’s Final Decision No. 1 on the Lummi usual and accustomed fishing areas included the Strait of Juan de Fuca, Admiralty Inlet and the mouth of Hood Canal. Both the Four Tribes and the Lummi Tribe now move for summary judgment on whether the disputed areas should be added to the Lummi usual and accustomed fishing grounds.

II. LEGAL ANALYSIS

A. Issue Preclusion

Before reaching the merits of the issue, the Four Tribes first contend that the Lummi Tribe’s attempt to bring an action expanding its usual and accustomed fishing grounds is precluded by Final Decision No. 1. The Four Tribes point out that, pursuant to paragraph 25 of the order entered in Final Decision No. 1, “[t]he parties or any of them may invoke the continuing jurisdiction of this court in order to determine: ... the location of any of a tribe’s usual and accustomed fishing grounds not specifically determined by Final Decision I. ...” (emphasis supplied) 384 F.Supp. at 419. The Four Tribes argue that the Lummi Tribe is precluded from relitigating the question of its rights in the disputed areas because Judge Boldt specifically rejected the Lummi Tribe’s claims to any fishing rights in those areas in Final Decision No. 1.

In Judge Coyle’s order of February 15, 1990 interpreting Judge Boldt’s Final Decision No. 1 on the question of Lummi Tribe usual and accustomed fishing areas, Judge Coyle held that Judge Boldt did not intend to include the disputed areas in the Lummi Tribe usual and accustomed fishing grounds. But that is not the same as concluding that Judge Boldt specifically rejected the Lummi Tribe’s claim to rights in the disputed areas.

Based on the record before it, this court is not willing to find that Judge Boldt determined the issue currently before the court within the meaning of paragraph 25 of the Final Decision No. 1 so as to preclude the Lummi Tribe from raising it now. As Judge Coyle pointed out, Judge Boldt relied heavily on the expert testimony of Dr. Barbara Lane in reaching the conclusions stated in Final Decision No. 1. 384 F.Supp. at 350. In a declaration executed on March 23,1989 in connection with this subproceeding at ¶ 5, Dr. Lane averred that “[a]t the time of [her] 1973 reports and testimony, [she] had not reached, expressed or intended any conclusion that the treaty-time U & A fishing grounds and stations of the predecessor Indians to the present Lummi Tribe included [the disputed areas].” On the other hand, she did not negate the possibility either. Her declaration went on to say that “[i]n the time available, ... [she was] unable to formulate a conclusion on treaty-time existence or extent of fishing activity by those Lummi predecessors in those waters.” Id. Given Judge Boldt’s extensive reliance on Dr. Lane’s expertise, the court doubts that he would have gone beyond her mere reservation of judgment to reject outright the Lummi Tribe’s claims to the disputed areas. Certainly there is nothing on the record to indicate that he did so.

B, Appropriateness of Summary Judgment

Regarding the question of whether summary judgment is appropriate, the Lummi Tribe offers affidavits from Dr. Wayne Suttles, Samuel Cagey and Clarence Cagey. Dr. Suttles is an anthropologist who has done research on the Coast Salish peoples, including the Lummis. Dr. Suttles avers as follows concerning the issue in this case:

4. It is my opinion that during the mid-19th century the Lummi and Samish people, whose territory included most of the San Juan Islands, customarily and routinely fished in the eastern Strait of Juan de Fuca, that is, the body of water partially enclosed by the San Juan Islands, southeastern Vancouver Island, the northeastern Olympic Peninsula, and Whidbey Island. They also fished in other waters.

5. In the eastern strait of Juan de Fuca, the Lummi and Samish caught, among other fishes, salmon (by trolling and with reef nets) and halibut. This fishing was a part of their regular food gathering activity.

Dr. Suttles also comments that there was extensive intermarriage among the peoples inhabiting the shore of the eastern Strait of Juan de Fuca, resulting in frequent visits among families in different villages and participation in local resource-harvesting activities including fishing. Id. at ¶ 6.

Samuel and Clarence Cagey, the authors of the other two declarations submitted by the Lummi Tribe in support of its motion for summary judgment, are brothers and enrolled members of the Lummi Nation. Born in 1924 and 1934, respectively, they are tribal elders who attest to having fished all of their adult lives. Both state that in their youth, relatives including their father, who was born in 1871, and their uncles told them about traditional fishing places including “in and around the San Juan Islands, Samish Bay., the Samish River, Point Roberts, the eastern part of the Juan de Fuca Strait, South Whidbey Island, around the north-eastern part of the Olympic Peninsula, and Admiralty Inlet.” Samuel Cagey Dec., ¶ 9; Clarence Cagey Dec., ¶ 13.

In response, the Four Tribes point out several flaws in the declarations on which the Lummi Tribe relies. Regarding Dr. Suttles’ declaration, the Four Tribes contend that he failed to cite any factual evidence in support of his opinion about the Lummi traditional fishing grounds. Indeed, his declaration merely states:

7. I base my opinions expressed in this declaration on my own research, especially the work that went into my doctoral dissertation but including my later work in the region, which contributed to articles that appear in my Coast Salish Essays and others listed in my curriculum vitae. My opinions have, of course been developed in the light of the work of others in this region, including, but not confined to, Franz Boas, Erna Gunther, Bernhard Stern, Diamond Jenness, Homer Barnett, W.W. Elmendorf, and Wilson Duff, as well as the early historical accounts. They have also developed in the light of discussions with other scholars, including, but not confined to, W.W. Elmendorf, Barbara Lane, and Michael Kew.

As for the Cageys’ declarations, the Four Tribes emphasize that they did not discuss treaty time fishing activity. Neither the declarants nor the relatives with whom they discussed fishing grounds in their youth were alive during treaty time. Based on these flaws in the evidence offered by the Lummi Tribe, the Four Tribes contend that the Lummi Tribe has failed to make a showing sufficient to withstand summary judgment on the issue of whether the disputed areas are within the Lummi Tribe’s usual and accustomed fishing grounds.

The court agrees with the Four Tribes that Dr. Suttles’ as well as Samuel and Clarence Cagey’s declarations are plagued by fundamental weaknesses. Nevertheless, the court is not willing at this juncture to conclude that summary judgment for the Four Tribes is appropriate.

While Dr. Suttles’ declaration in itself is remarkably devoid of any reference to specific evidence on which he relied in reaching the opinion stated, his curriculum vitae reflects an extensive background stretching back more than forty years in researching the history of Northwest Coast Indians. For purposes of surviving summary judgment, the court will accept Dr. Suttles’ general qualifications as an expert in the field and provide him the opportunity to substantiate the opinion stated in his declaration with specific factual and documentary evidence. The court has also taken account of the Four Tribes’ concern about the vagueness and ambiguity inherent in Dr. Suttles’ description of the area to which he refers in his declaration. The court will expect Dr. Suttles to clarify the boundaries of the geographic areas to which he refers together with the specific documentation pertinent to each area.

As for Samuel and Clarence Cagey’s declarations, the court finds that they are very weak evidence. But while they fail to address fishing practices during treaty time, they are not entirely irrelevant. Coupled with Dr. Suttles’ opinion in his declaration, the court finds that the Lum-mi Tribe has presented sufficient evidence to at least survive summary judgment.

III. CONCLUSION

The Four Tribes’ and the Lummi Tribe’s cross motions for summary judgment are accordingly DENIED.

CONSENT DECREE REGARDING SHELLFISH SANITATION ISSUES

Subproceeding 89-3

(May 4, 1994)

EDWARD RAFEEDIE, District Judge.

I. PARTIES

A. This Consent Decree is entered into by and between the plaintiffs United States of America, Hon. Tribe, Jamestown S’Klallam Tribe, Lower Elwha S’Klallam Tribe, Lummi Nation, Makah Tribe, Muck-leshoot Tribe, Nisqually Tribe, Nooksack Tribe, Port Gamble S’Klallam Tribe, Pu-yallup Tribe, Quileute Tribe, Quinault Indian Nation, Skokomish Tribe, Squaxin Island Tribe, Suquamish Tribe, Swinomish Indian tribal Community, Tulalip Tribes, Upper Skagit Tribe, and Yakama Indian Nation, defendant the State of Washington and defendant state officers (“the state defendants”), all of whom, plaintiff and defendant, are referred to hereinafter as “the parties”.

B. Plaintiff tribes are federally-recognized Indian tribes. The plaintiff tribes, or other tribes or bands of which the plaintiff tribes are successors-in-interest, are parties to treaties with the plaintiff United States executed by their representatives in the 1850’s, each of which reserves to the tribes, in substantially identical language, “the right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing.... Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens.” [quoted from Art. Ill, Treaty of Medicine Creek, 10 Stat. 1133] Tribes regulate the shellfish-ing activities of their members to protect public health.

C. The United States Food and Drug Administration (“FDA”) is the agency of plaintiff United States having primary responsibility for protecting the public from shellfish-borne illness. FDA prepares and publishes the National Shellfish Sanitation Program (“NSSP”) Manual of Operations, which contains standards to be used in regulating commerce in clams, oysters, mussels and scallops in order to protect the public from shellfish-borne illness. FDA also publishes the Interstate Certified Shellfish Shippers List, which identifies all persons and entities who have been determined by FDA or by an FDA-approved Shellfish Sanitation Control Agency to be in compliance with the NSSP Manual and whose product may be shipped interstate.

D. The state regulates shellfish harvest, processing and sale in order to protect public health. The state is a member of the Interstate Shellfish Sanitation Conference (“ISSC”), an organization of states, the shellfish industry, and federal agencies operating under a Memorandum of Understanding with FDA. The ISSC provides a forum for its members to discuss shellfish sanitation issues, and it suggests changes in the NSSP Manual to thé FDA.

II. RECITALS

A. As used in this Decree, “covered claims” means claims of the plaintiffs, set forth in Part I of the Final Pretrial Order approved by the Court in this subproceed-ing, that relate to the application to or enforcement against the plaintiff tribes of state laws, regulations, or policies which regulate the taking, possession, or disposition of shellfish in order to protect the public from shellfish-borne illness; and the claims of the State of Washington set forth in Part II.B.l. of that Pretrial Order; and any claim of any party related to the authority of the state to regulate treaty shell-fishing activities in order to protect the public from shellfish-borne illness, which claim could have been adjudicated in this subproceeding had it been prosecuted to final judgment. For the purpose of determining whether claims could have been adjudicated, reference shall be made to the facts and allegations made in the documents filed with the Court in this subpro-ceeding prior to the date of entry of this Decree which relate to the protection of the public from shellfish-borne illness, including facts and allegations made in the Requests for Determination, the Amended Request for Determination, the Response of the State to the Requests for Determination, and the Pretrial Order approved by the Court pursuant to Local Civil Rules 16 and 16.1 of this Court.

B. This subproceeding was filed in 1989 seeking declaratory and injunctive relief regarding the treaty right to take shellfish, including a declaration and injunction regarding the authority of the state to regulate treaty shelfishing activities for public health purposes.

C. The United States and the tribes seeking relief in this subproceeding have claimed that their treaties substantially restrict state authority; these tribes, however, have acknowledged a willingness to abide by state regulation of treaty shell-fishing activities to protect public health, so long as such regulation is reasonable and necessary, non-discriminatory, and meets appropriate standards. The United States and these tribes have further claimed that some state shellfish sanitation laws, regulations and policies do not meet this test and cannot be enforced against tribal treaty shellfishing activities.

D. The state defendants claim that they may regulate Indian treaty shellfish-ing activities of plaintiff tribes to protect human health, safety and welfare, provided any such regulations are reasonable and non-discriminatory. The state has denied plaintiffs’ claims regarding the restricted applicability of its shellfish sanitation laws to Indian treaty shellfishing.

E. Without admission or adjudication of any covered claim, and without waiving any objection, claim, or defense with regard to claims other than the covered claims, in settlement of the covered claims the parties have agreed, upon entry of this Consent Decree, to participate in a cooperative investigatory and regulatory program to protect the public from food-borne illness associated with the consumption of contaminated shellfish. The tribes have agreed that the performance criteria and other satisfactory compliance provisions of the NSSP Manual will govern their treaty shellfishing activities, with regard to species to which the Manual applies. In addition, the parties have agreed to mechanisms whereby any plaintiff tribe having treaty shellfishing rights may implement certain shellfish sanitation measures independently of the state.

F. The terms of this Decree are not intended, nor could they be expected, to specify every detail of the operation of the cooperative shellfish sanitation program. The parties have attempted to specify, in the Appendix to the Settlement Agreement which is part of this Decree, some of the details, particularly technical ones, involved in the operation of their cooperative program. Some such details must, of necessity, change as scientific knowledge of shellfish and public health change. Therefore, the parties have established mechanisms in the Settlement Agreement and Appendix for the further refinement of their cooperative program.

G. The parties agree that the covered claims raise matters of sovereign interest, and that their settlement of the covered claims as set forth in this Decree is fair, adequate, reasonable, equitable and in the public interest and is made in good faith after arms-length negotiations, and that entry of this Consent Decree is the most appropriate means to resolve the matters covered herein.

NOW, THEREFORE, before the taking of any testimony, before the adjudication of the covered claims, and without admission of any issue of law, fact, or liability by the parties, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

III. ORDER

A. The Court has jurisdiction over the subject matter of the covered claims and over the parties pursuant to 28 U.S.C. §§ 1331, 1345, and 1362. Plaintiffs assert, but the state defendants contest, that the Court also has jurisdiction pursuant to 28 U.S.C. § 1343(a)(3) and this Court’s continuing jurisdiction as declared in ¶ 24 of the Declaratory Judgment and Decree of February 12, 1974, 384 F.Supp. 312 at 408. All parties to this Decree, for purposes of the entry and enforcement of this Decree, waive all objections and defenses they may have to the jurisdiction of the Court, or to venue in this District, or to service of process prior to the entry of this Decree but not afterwards.

B. The provisions of this Decree shall apply to and be binding on the parties, their agencies, subdivisions, boards, and commissions, all agents and officers thereof, and all successors and assigns of all such entities and individuals; and each of them are hereby enjoined to comply with the provisions of this Decree. Changes in the organizational structure of a party or any of its agencies, subdivisions, boards and commissions shall have no effect on its obligations under this Decree.

C. The attached Settlement Agreement, including the Appendix, is hereby incorporated by reference in and made a part of this Decree as if fully set forth herein.

D. Except as specifically provided for otherwise in the Settlement Agreement, the plaintiffs covenant not to sue or to take any other judicial or administrative action against any state defendant, and the state defendants covenant not to sue or to take any other judicial or administrative action against any plaintiff, or against any member of a plaintiff tribe, for covered claims or for any claims relating to or arising from the filing and litigation of the covered claims and the negotiation, terms, approval and implementation of this Decree.

E. If for any reason the Court should decline to approve this Decree in the form presented, any statements made in negotiation and the terms herein may not be used as evidence in any litigation or administrative proceeding.

F. Each undersigned representative of the parties certifies that he or she is fully authorized to enter into the terms and conditions of the Decree and to legally execute, and bind such party to, the Decree.

G. The terms of this Decree may be modified only by a subsequent written agreement executed by all the parties and approved by the Court. Notwithstanding the foregoing, the parties by written agreement and without the need for Court approval may modify or amend the Appendix to the Settlement Agreement, other than Attachment A thereto, relating to procedures for the development of implementation protocols and policies, which shall not be amended without Court approval.

H. If for any reason the Court declines to approve this Decree in the form presented, this Decree and the settlement embodied herein shall be voidable at the sole discretion of any party upon written notice to all parties and to the Court.

I. This Consent Decree shall be effective upon the date of its entry by the Court.

J. The Court shall retain jurisdiction for purposes of entering such further orders as may be appropriate for the construction, implementation, or enforcement of the Decree. In the event that the jurisdiction retained in this paragraph, or the continuing jurisdiction of the Court over Civil No. 9213 or over this subproceeding, is terminated, this Decree shall be enforceable in the same manner as any final judgment and order of the Court.

K. The use of the terms “primary responsibility” and “concurrent jurisdiction” in the Settlement Agreement shall not be construed to confer or enlarge the jurisdiction of any plaintiff tribe over non-Indians.

By signature below all parties consent to entry of this Decree as an Order of the Court.

SETTLEMENT AGREEMENT

REGULATION OF TREATY SHELLFISHING FOR HEALTH PURPOSES

Subproceeding 89-3

CONTENTS

I. ESTABLISHMENT OF COOPERATAIVE, INTERGOVERNMENTAL SHELLFISH SANITATION PROGRAMS.1139

A. Objectives/Applicability Of National Shellfish Sanitation Program Manual.1139

B. FDA Approved, Independent Tribal Shellfish Sanitation Control Agencies .1140

C. Development And Expansion Of Intergovernmental Shellfish Sanitation Programs/Teehnical Assistance .1141

II. LICENSING, INSPECTION AND CERTIFICATION FOR INTERSTATE AND INTRASTATE SHIPMENT.1142

A. Tribes May Assume Primary Responsibility For Individual And Tribal Shellfish Operations.1142

B. State To Exercise Primary Responsibility.'.1143

C. Tribal Certification — Compliance with NSSP Manual Part II.1144

D. License Fees.1144

III. SHELLFISH SANITATION CRITERIA AND MEASURES APPLICABLE TO TREATY SHELLFISHING ACTIVITIES ... I — i

A. Compliance With NSSP Manual Sufficient. l — i

B. Emergencies-Additional Measures, Including Closures, May Be Applied To Treaty Shellfishing When Essential In Responding To A Health Emergency. l& t — i t-H

C. Commercial Harvests From Closed Areas Shall Be Prohibited_ IC 1-H t — I

1146 D. Commercial Harvests From Closed Areas Permissible If Not For Human Consumption.

1147 E. Joint Identification And Development Of Protocols, Standards And Other Guidance For Implementation Of The NSSP Manual ....

1147 F. Growing Area Classification/Certification.

IV. EXCHANGE OF REGULATIONS AND DATA/REPORTING ILLNESSES .1149

V. STATE AUDIT OF TRIBAL PROGRAMS.1149

VI. ENFORCEMENT.1149

VII. NOTIFICATION.1152

VIII. DISPUTE RESOLUTION.1152

A. Matters Reviewable.1152

B. Dispute Resolution Committee .1153

C. Appointment Of Master Expert.1154

D. Review Procedure.'.1154

IX. CONSISTENCY OF AGREEMENT WITH NATIONAL SHELLFISH SANITATION PROGRAM7ANTI-DISCRIMINATION PROVISION.1155

X. AMENDMENTS.1155

XI. INTENT TO BIND POLITICAL SUBDIVISIONS, ETC .1155

XII. JUDICIAL APPROVAL.1155

APPENDIX.1156

SHELLSTOCK HARVEST FOR BAIL PROPOSED REQUIREMENTS.1157

SHORT-TERM RELAYING PROTOCOL AND GENERAL REQUIREMENTS.1158

PROCEDURES FOR ESTABLISHING SANITARY LINES IN SHELLFISH GROWING AREAS.1162

PROCEDURES FOR ESTABLISHING SANITARY LINES AROUND WASTEWATER OUTFALLS.1168

PROCEDURES FOR ESTABLISHING SANITARY LINES AROUND MARINAS.1164

MINIMUM QUALIFICATION FOR STANDARDIZED SHELLFISH INSPECTORS.1165

MINIMUM QUALIFICATIONS FOR CONDUCTING WATER QUALITY STUDIES. 1166

MINIMUM QUALIFICATIONS FOR CONDUCTING SHORELINE SURVEYS... .1166

EXAMPLES OF EFFECTIVE TRIBAL PROGRAMS TO PREVENT SALE OF CEREMONIAL AND SUBSISTENCE HARVEST.1167

REGULATION OF TREATY SHELL-FISHING ACTIVITIES FOR HEALTH PURPOSES

SETTLEMENT AGREEMENT

The plaintiff tribes, United States, and State of Washington, in settlement of the health protection issues raised in United States v. Washington, W.D. Wash. Civil No. 9213, Subproceeding 89-3, which involve the scope of state authority to regulate treaty shellfishing activities for shellfish sanitation, agree as follows.

I. ESTABLISHMENT OF COOPERATIVE, INTERGOVERNMENTAL SHELLFISH SANITATION PROGRAMS

A. Objectives/Applicability of National Shellfish Sanitation Program Manual

The tribal, United States, and state governments, which are parties to this Agreement [hereafter “parties”], recognize that they share a strong concern for shellfish sanitation and the enforcement of effective measures to protect the public from health hazards associated with shellfish contamination. The parties agree that these mutual objectives can be effectively addressed by cooperative, intergovernmental shellfish sanitation programs in which the state and tribes accept varying degrees of responsibility for shellfish sanitation matters related to treaty shellfishing activities. The parties agree that these intergovernmental programs are appropriate not only in protecting public health but also in addressing the jurisdictional issues surrounding treaty shellfishing rights, the special federal/tribal relationship, and the State of Washington Centennial Accord. In implementing all aspects of this Agreement, the parties agree to be guided by the unique legal and political status of the tribes, to the extent the level of health protection provided by the programs would not be compromised. The State of Washington agrees to support separate tribal representation in the Interstate Shellfish Sanitation Conference (“ISSC”) and other intergovernmental organizations involved in the development of shellfish sanitation standards, data, training or information. The tribes agree that the performance criteria and other satisfactory compliance provisions of the National Shellfish Sanitation Program (“NSSP”) Manual, currently in effect, or as subsequently adopted, shall govern their treaty shellfishing activities. The tribes retain the right to propose and pursue changes in the NSSP Manual, in applicable federal law, and in any state shellfish sanitation laws, regulations, or policies. In proposing and pursuing such changes, the tribes will not challenge the application of the terms of this Agreement to them or their members as inconsistent with their treaty rights, except that changes in the NSSP manual claimed to discriminate against treaty shellfishing activities may be challenged on that ground. Nothing in this Agreement shall preclude a tribe from enacting ordinances or adopting regulations more stringent than the NSSP standards.

B. Independent Tribal Shellfish Sanitation Control Agencies

A tribal government may undertake sole responsibility for shellfish sanitation in its treaty shellfishing activities. A tribe having sole responsibility for shellfish sanitation shall be responsible for ensuring compliance in treaty fishing activities with the NSSP Manual, both Parts I and II. The state will have no responsibility for licensing, certifying or inspecting such activities or any shellfish operation of such a tribe, for the purposes of shellfish sanitation. The state also will not conduct any shellfish sanitation enforcement as to such treaty shellfishing. Such tribe could undertake independent classification of growing areas within its usual and accustomed areas, consistent with the concurrent jurisdiction provisions of this Agreement, provided that such tribe may not undertake such classification as to any bed staked or cultivated by citizens unless afforded access to the bed by agreement of the owner or lessee. A tribe in this category is not subject to Parts II, III, §§ B-F, V, VI and the Appendix to this Agreement, but may choose to participate in any of the joint technical/protocol development, enforcement, or other intergovernmental measures provided for in those sections.

The tribes agree that before undertaking sole responsibility, approval will be obtained from the appropriate office of the United States Food and Drug Administration (“FDA”) for the tribe’s independent shellfish sanitation program (“SSCA”). FDA’s approval will be based upon a tribe’s ability to meet the standards set forth in the NSSP Manual. In addition to facilities, staff, and other resources of a tribal organization, a contractor, or consultant may be relied upon to establish a tribe’s qualifications to act as an independent shellfish sanitation control agency.

The parties recognize that a tribe’s status as an independent shellfish sanitation control agency may present questions related to concurrent jurisdiction over growing areas from which both tribal and non-tribal harvest is permitted. Questions will relate, for example, to initial classification, reclassification, and monitoring of growing areas and response to actual or perceived emergencies. As part of any tribal request for recognition as an independent shellfish sanitation control agency, the state and tribe shall present either a joint proposal to FDA for addressing these jurisdictional questions or a statement of their respective positions on disputed jurisdictional questions. Disputes over whether a particular matter raises a meritorious claim of jurisdiction may be submitted for federal court resolution. Where the state and tribes agree or the court determines that concurrent jurisdiction exists, disputes regarding the appropriate coordination or exercise of such jurisdiction for public health protection shall be resolved through the mechanism described in Part VIII, § A.3 of this Agreement. Any jurisdictional question identified after the approval of a tribe as a SSCA, which for whatever reason, was not addressed earlier shall be addressed and resolved by the state and tribes and submitted to FDA using the same procedure applicable to an initial request for recognition.

C. Development And Expansion Of Intergovernmental Shellfish Sanitation Programs/Technical Assistance

The state shall seek funding for a well-qualified individual who would be employed by the state for the purpose of assisting the tribes in developing expertise in matters of public health and shellfish sanitation. When funding for this position becomes available or is reasonably anticipated, the state will provide the tribes with a list of qualified individuals who have public health expertise and, more specifically, expertise with respect to shellfish sanitation. The state, in consultation with the tribes, will select from this list one person whose responsibility would be to advise the tribes with respect to public health and shellfish sanitation. This individual will be a state employee and the state will provide this individual’s salary and benefits for a period of five years. It is contemplated that this individual would be officed in a tribal facility such as the Northwest Indian Fisheries Commission (NWIFC) office and will prioritize his or her activities as determined by the tribes. During this time, those tribes desiring to take responsibility for shellfish sanitation matters will seek funding and/or other necessary support to hire and integrate into their tribal shellfish programs persons with experience in public health and shellfish sanitation matters. The state may seek additional funding for the purpose of assisting the tribes in developing expertise in matters of public health and shellfish sanitation.

The state will provide additional technical assistance to tribes wishing to increase their expertise in matters of public health and shellfish sanitation subject to resource constraints. Examples of technical assistance include training, agreements for use of state laboratory facilities and access to state data, and advice regarding program design and operation.

It is recognized by the parties that the personnel infrastructure necessary for a comprehensive shellfish sanitation program, the wide array of technical expertise, and laboratory support facilities would be more easily attained through intertribal cooperation and sharing of resources. In establishing the tribes’ abilities to accept varying degrees of responsibility leading to being recognized as independent tribal SSCA’s, the pooling of tribal resources and expertise shall be considered consistent with the provisions of this Agreement and is encouraged.

The tribes and state agree to establish regular meetings, at least on a quarterly basis, to discuss shellfish sanitation matters of concern, exchange information and knowledge, and identify and implement mechanisms to further their cooperative, intergovernmental approach, consistent with this Agreement.

Tribes shall be notified of and may participate in all formal FDA and state shellfish sanitation training programs. The Department of Health will use its best efforts to gain FDA approval of a state laboratory certification officer. Upon application, the state’s lab certification officer will determine whether the applicant’s laboratory meets the requirements of Part I of the NSSP Manual. This shall not preclude FDA certification of a tribal laboratory.

II. LICENSING, INSPECTION AND CERTIFICATION FOR INTERSTATE AND INTRASTATE SHIPMENT

Any state or tribal licensing or certification decision regarding a tribal or individual tribal operation and relating to shellfish sanitation shall be consistent with this Agreement. The State agrees that, for the purpose of complying with this Agreement, a tribe may license individual tribal members and nonmember assistants to harvest, and to sell the shellfish they have harvested, under the tribe’s state license and certification number, provided that the licensing of nonmember assistants complies with the ruling of the court in United States v. Washington, 384 F.Supp. 312, 412 (W.D.Wash.1974) (Ruling on Fisheries’ Question No. 20).

A. Tribes May Assume Primary Responsibility For Individual And Tribal Shellfish Operations

Although not approved as an independent shellfish sanitation control agency, a tribe may assume primary responsibility for the inspection and licensing of shellfish operations subject to its jurisdiction by obtaining FDA recognition that a tribal employee, consultant, or agent satisfies the qualifications for becoming a “standard,” in accordance with FDA procedures, and as provided in the NSSP Manual. Such responsibility includes responsibility for ensuring compliance of individual tribal harvesters and tribally authorized shellfish dealers with Part II of the NSSP Manual. This Agreement provides for the recognition of such tribal standards. This provision, the parties agree, is a step toward tribal autonomy with respect to the regulation of shellfish sanitation. This provision also reduces burdens on the state with respect to routine inspections. The standard shall have the education and experience described in the Appendix, Attachment F.

The standardization requirement may be satisfied by the standardization of a qualified employee, consultant, or agent of a tribal organization or other entity from which it may obtain the required evaluation services.

A “standard” who is to provide evaluation services to a tribe must satisfy all requirements of the FDA or the NSSP which apply to state standards, including but not limited to periodic reevaluations, unless FDA determines that a particular requirement, or requirements would impair a tribe’s ability to undertake primary shellfish sanitation responsibility and can be waived without compromising public health protection. A standard shall not have any inspection authority as to an operation in which he or she has any proprietary or financial interest, employment relationship or managerial responsibility.

Tribes under this Part II § A agree to obtain a state shellstock shipper or shueker/packer license and certificate of approval and state certification to the FDA for inclusion on the Interstate Certified Shellfish Shippers List (ICSSL) provided that such licensing and certification shall be deemed a voluntary division of responsibility in furtherance of establishing cooperative, intergovernmental shellfish sanitation programs. Tribes and individual tribal operations obtaining a state license and certification pursuant to either this Part II, § A or the following Part II, § B shall not thereby become subject to any state shellfish sanitation laws, regulation, or enforcement authority, except as expressly provided in this Agreement.

The state will not license individual shellfish operations within the jurisdiction of tribes under this Part II, § A. The names of the individual shellfish operations will appear separately on the ICSSL. Individual shellfish operations within the jurisdiction of tribes, for purposes of this Agreement, means any shellfish operation within the territorial jurisdiction of the tribe, in which the tribe or any tribal members) own an interest in excess of 50% and exercise actual management control. The tribe shall notify the state of all such individual shellfish operations. In licensing individual shellfish operations, the tribe may retain direct responsibility for compliance with specific components of Part II of the NSSP Manual.

The “standard” relied on by the tribe shall inspect, evaluate and, as necessary, initiate sanctions against any shellfish operation within the jurisdiction of the tribe. The standard will perform these functions in accordance with Part II of the NSSP Manual, as provided by tribal ordinance or regulation. The standard will advise the state and FDA of his or her inspection schedule and will provide copies of all inspection reports, as well as prompt notice of any adverse action taken in regard to a shellfish operation. A state and/or FDA standard will be permitted to accompany the tribal standard on any inspection. A state standard may independently conduct only such inspections as are reasonably necessary to audit the tribal program, pursuant to Part V of this Agreement. Any dispute over whether state inspections are reasonably necessary to audit the tribal program shall be subject to dispute resolution pursuant to Part VIII, § A.3.

B. State to Exercise Primary Responsibility

The state will have primary responsibility for certain shellfish sanitation matters as to treaty shellfishing activities by any tribe not itself a shellfish sanitation control agency and not having primary responsibility for inspection and licensing as provided herein, unless the tribe notifies the state that the tribe chooses not to permit shellfishing for commercial purposes, does not itself engage in commercial shellfishing activities, and identifies effective tribal controls to prohibit subsistence and ceremonial harvests from being diverted to commercial use. Effective controls are described in Part III, § C of this Agreement. Primary responsibility means primary responsibility for ensuring compliance with Part II of the NSSP Manual. Accordingly, the state shall license, certify, and inspect operations over which it retains primary responsibility. The sanction, if any, against a tribe or individual tribal operation shall be limited to license denial, suspension, modification or revocation. Any action against a tribe shall be conducted as a dispute resolution pursuant to Part VIII, § A3 of this Agreement with those responsible for dispute resolution having the power to deny, suspend, modify or revoke the tribal license. License actions against individual tribal operations shall be conducted under the state administrative process.

C. Tribal Certification — Compliance with NSSP Manual Part II.

If the state believes any tribe employing an FDA recognized standard, or any shellfish operation subject to the jurisdiction of such tribe, is out of compliance with Part II of the NSSP Manual, the state shall so notify the tribe in writing, detailing the deficiencies. A reasonable opportunity to take corrective action shall be offered, consistent with Part II of the NSSP Manual. Where consistent with the findings of a tribal standard and with Part II of the NSSP Manual, the state may, for purposes of the FDA’s Interstate Certified Shellfish Shipper’s List, withhold or withdraw the certification of an individual shellfish operation within the tribe’s jurisdiction, if the deficiencies are not corrected. The state may also initiate action under the dispute resolution provisions, Part VIII, to suspend, modify or revoke the license of any tribe employing an FDA recognized standard which fails, under this subsection, to comply or insure compliance with Part II of the NSSP Manual.

D. License Fees

The state shall not charge a fee for licensing any tribal treaty or individual treaty shellfishing operation as provided for in this Agreement.

III. SHELLFISH SANITATION CRITERIA AND MEASURES APPLICABLE TO TREATY SHELL-FISHING ACTIVITIES

A. Compliance With NSSP Manual Sufficient

The parties agree that compliance with the performance criteria and other satisfactory compliance provisions set forth in the NSSP Manual, with the terms of this Agreement, and with all applicable federal laws or regulations governing shellfish sanitation, is adequate to protect public health. The tribes agree to regulate their treaty shellfishing activities, either independently or in conjunction with the state as provided herein, to maintain such compliance. Except as expressly provided in this Agreement, the state will not apply its shellfish sanitation laws, regulations, or policies to the tribes or their members.

The Manual currently covers clams, mussels, oysters, and scallops. The state and tribes agree to develop, as necessary, a cooperative approach for health regulation of any shellfish species subject to the tribes’ treaty right which is not covered by the NSSP Manual. This approach shall be consistent with and modeled after the approach taken herein with respect to clams, oysters, mussels and scallops. The approach shall provide for:

1) comparable opportunities for increasing, and ultimately establishing exclusive tribal shellfish sanitation control; this includes but is not limited to primary reliance on tribal licensing, inspection, and other regulation;

2) an application of state sanitation laws to treaty shellfishing which is limited to emergency situations and those situations where a tribe has not yet developed an effective program for protection of public health; such application shall not discriminate against treaty shellfish-ing activities;

3) joint development of regulatory protocols and decisions;

4) exclusive tribal enforcement over members where a tribe has its own regulatory system in place; and

5) intergovernmental cooperation.

The state and tribes shall use the process outlined in the Appendix, Attachment A to develop this approach, prioritized according to the level of health concern. Any disputes as to the state’s legal authority in regard to species subject to the tribes’ treaty right and not presently covered by the NSSP Manual, including questions involving the impairment of treaty shellfishing rights, may be submitted to the federal court. Other disputes shall be resolved pursuant to the dispute resolution provisions of this Agreement. In the interim, if the state seeks to apply a state shellfish sanitation law to a treaty tribe, with respect to species subject to a tribe’s treaty right and not covered by the NSSP Manual, the state shall seek the tribe’s agreement including, where appropriate, voluntary agreement to state licensure, inspection and compliance with standards applied to non-treaty shellfishers. If the tribe objects, the state may submit the matter to the federal court for resolution, provided that Part III, § B. of this Agreement shall apply in the case of a health emergency.

B. Emergencies — Additional Measures, Including Closures, Hay Be Applied To Treaty Shellfishing When Essential In Responding To A Health Emergency

1. Notwithstanding any other provision of this Agreement, the state may take summary administrative action against the tribal operation including license suspension, closing of growing areas and seizure or recall of product, in the case of a health emergency. A health emergency is a situation involving an immediate danger to the public health requiring immediate action. The state may take only such action as is necessary to prevent or avoid the immediate danger to the public health and justifies use of the emergency action.

2. The state agrees that in the case of a health emergency it will notify affected tribes of the situation and will provide available, relevant data as soon as possible. Consistent with the gravity of the health threat and the need for immediate response, the state will provide affected tribes an opportunity for prior consultation and prior technical/policy review.

3. Health emergencies may occur, for example: where established shellfish sanitation standards such as paralytic shellfish poison levels are exceeded; where harvesting areas are implicated in human illness; in the case of a catastrophic polluting event of unknown impact such as floods and oil or sewage spills; where contaminants present unknown health risks as was the case with domoic acid; where commercial shellfish operations engage in the sale of shellfish from closed areas contrary to the provisions of this Agreement; or where a tribal shellfish operation fails to meet a critical standard as defined in Part II of the NSSP Manual.

4. The state shall defer to measures adopted by a tribe to address a health emergency, where such measures would effectively protect public health. Any tribe affected by the state’s action in the case of an alleged health emergency may invoke the dispute resolution mechanism described in Part VIII, § 3 of this Agreement to challenge the appropriateness of the emergency measures, either before or after they are implemented, but such measures shall remain in effect until resolved otherwise through dispute resolution.

C. Commercial Harvests From Closed Areas Shall Be Prohibited

1. A closed area is an area from which commercial shellfish harvest is not permitted under the terms of this Agreement. Each tribe will prohibit commercial harvest from closed areas and the sale of shellfish from closed areas. Sanctions authorized by tribal law for violation of such provisions shall be sufficient to deter prohibited conduct. The state and tribes agree that any harvest for human consumption from growing areas which are closed, based on a sanitary survey or marine biotoxin report, is undesirable. The state and tribes also agree that such harvest should be discouraged through educational or other means.

2. Consistent with subsistence needs for all relevant species, each tribe will impose restrictions or measures to prevent the unlawful diversion to commercial use of shellfish harvested for subsistence purposes. These could include subsistence bag limits, restricting subsistence harvest in closed areas to monitored conditions, or such other controls as are effective. The tribe shall provide the state specific descriptions of the tribe’s restrictions and/or other measures for review and comment. It is agreed that the current tribal monitoring systems and controls described in the Appendix, Attachment I, represent examples of effective restrictions or measures. Sanctions authorized by tribal law for violation of provisions established under this paragraph shall be sufficient to deter prohibited conduct.

3. Tribes will notify the state shellfish sanitation program in advance of any ceremonial harvest from closed areas which does not comply in all respects with the limitations on closed area subsistence shellfishing. The ceremonial harvests will be subject to tribal controls similar to those enacted or adopted to prevent the diversion of subsistence harvest into the commercial market.

4. If after review and comment the state does not agree that the tribe’s controls for ceremonial or subsistence harvest would be effective, the matter may be referred to dispute resolution.

5. Consistent with the limitations on the release of criminal record information and any other confidentiality requirements imposed under state law, the state shall timely notify the tribes of all citations and/or arrests for violation of RCW 69.30.110, and any other state law imposed to prevent the unlawful diversion to commercial use