United States v. Washington (19 F. Supp. 3d 1184, 1996)

TABLE OF CONTENTS

ORDER PAGE

Order Vacating Entry of Judgment (1/17/95) 1187

Order Denying Motion by Duwamish, Snohomish and Steilaeoom Indian Tribes to Reopen Judgment Under Rule 60(b) (1/23/95) 1188

Order Granting in Part and Continuing in Part Muckleshoot’s Motion for Partial Summary Judgment (7/5/95) 1191

See Ap-Order re: Implementation of Shellfish Proviso, 898 F.S. 1453 (8/28/95) pendix

Order Granting Muckleshoot’s Motion for Partial Summary Judgment (10/4/95) 1194

Memorandum Opinion and Order Granting in Part and Denying in Part Plaintiffs See Ap-Motion to Alter or Amend Judgment, 909 F.S. 787 (12/18/95) pendix

Order re: Granting Preliminary Injunction (3/22/96) 1196

Minute Entry: In Chambers Proceeding (4/11/96) 1199

Order Granting Motions for Approval of Settlement Agreements and Denying Request that Dismissal Without Prejudice by Conditional on Payment of Defense Costs and Attorney Fees (7/11/96) . 1199

Order Granting Makah’s Motion for Partial Summary Judgment and Denying Oregon’s Cross Motion for Summary Judgment and Washington’s Motion for Stay (11/4/96) 1245

Decision by the Special Master (11/26/96) 1247

COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 1996) ORDER VACATING ENTRY OF JUDGMENT

Subproceeding No. 89-3.

(January 17, 1995)

RAFEEDIE, District Judge.

The clerk is ordered to VACATE the entry of judgment entered on December 20, 1994.

The memorandum decision issued by this Court disposes only of the treaty interpretation issues and is only a partial judgment, which should not be separately entered.

Before the Court are still issues of injunc-tive relief, claims for equitable relief, time, place, and manner restrictions, if any, on shellfish harvesting, and other issues raised by the pleadings.

These and other issues cannot be resolved, for example, until there has been a determination of the location of shellfish beds covered by the Court’s decision.

It was on these latter issues that the Court sought the parties’ input and agreement, if possible, considered in light of the Court’s treaty interpretation. To the extent that the parties are unable to agree on such issues, the Court will decide them.

Until final judgment has been entered, the status quo ante shall remain in effect. Accordingly, the recent motion by the inter-venor growers for a stay pending appeal or for equitable relief is premature until a final judgment has been entered.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk of the Court shall serve, by United States mail, copies of this Order on counsel for the parties in this matter.

ORDER DENYING MOTION BY DU-WAMISH, SNOHOMISH AND STEILACOOM INDIAN TRIBES TO REOPEN JUDGMENT UNDER RULE 60(b)

Subproceeding No. 93-2

(January 23, 1995)

BARBARA JACOBS ROTHSTEIN, District Judge.

THIS MATTER comes before the court on a motion by the Duwamish Indian Tribe, the Snohomish Indian Tribe and the Steilacoom Indian Tribe (“the tribes”) under Fed.R.Civ.P. 60(b) to reopen a judgment entered in this case on March 23, 1979. Having reviewed the motion together with all documents filed in support and in opposition, having heard oral argument, and being fully advised, the court finds and rules as follows:

I. FACTUAL BACKGROUND

In 1974, United States District Court Judge George H. Boldt held that tribes in Washington Territory which had signed treaties in the 1850’s relinquishing their aboriginal rights to land in exchange for the right to take fish at all usual and accustomed places were entitled to take up to fifty percent of the harvestable fish passing through their off-reservation fishing grounds. United States v. Washington, 384 F.Supp. 312 (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). See also, State of Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979).

Among the tribes intervening in the case before Judge Boldt in 1974 to assert treaty fishing rights were the Duwamish, Snoho-mish, Steilacoom, Snoqualmie and Samish Indian Tribes. On September 13, 1974, Judge Boldt referred the issue of the treaty-tribe status of these intervenors to a magistrate. After holding several hearings, the magistrate issued a report concluding that none of the five intervenor tribes qualified as a successor to a treaty tribe. Pursuant to an appeal by the five tribes from the magistrate’s report, Judge Boldt ordered a de novo evidentiary hearing in August of 1975, directed the tribes to submit additional evidence in March of 1976, and heard oral argument on the matter in January of 1977.

In February of 1978, Judge Boldt underwent surgery for an aortic aneurysm which occasioned a lengthy period of convalescence. Early in 1979, Judge Boldt asked to be relieved of his judicial duties because of his failing health. On February 16, 1979, two of the three moving tribes in this case requested that Judge Boldt be allowed to resolve the still pending issue of the five intervenor tribes’ treaty status. In an order dated March 14, 1979, Chief Judge Walter T. McGovern granted the motion on the grounds that it was “in the best interests of judicial administration and economy, and in the interest of all parties.” In a footnote, Judge McGovern stated that “[t]he court has been informed that Judge Boldt is willing, if requested, to consider and issue a ruling on this matter.”

Judge Boldt issued his decision on March 23, 1979. In doing so, he adopted with minor changes the proposed findings of fact and conclusions of law submitted by the United States. On April 25, 1979, he issued a brief order denying the tribes’ motion for reconsideration. The Ninth Circuit affirmed the decision, 641 F.2d 1868 (1981), and the United States Supreme Court denied the tribes’ petition for certiorari. 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982).

The Duwamish, Snohomish and Steila-coom Tribes now move to reopen the judgment of March 28, 1979 pursuant to Fed. R.Civ.P. 60(b)(6) for the purpose of conducting discovery into the state of Judge Boldt’s mental health at the time he rendered his decision. The motion is prompted by an article published on June 11,1992 in the Seattle Post-Intelligencer which states that, according to Judge Boldt’s death certificate issued in March of 1984, he suffered the onset of Alzheimer’s Disease in 1978, the year before the decision at issue was made. This motion is opposed by the United States, the State of Washington, and numerous other tribes involved in the lengthy litigation over fishing rights in the state of Washington.

II. LEGAL ANALYSIS

A. Applicable Standard

Rule 60 governs relief from judgments and orders of the court. Rule 60(b)(6) provides as follows:

(b) On motion and upon such terms as are just, the court may relieve a party or a party’s legal representatives from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.

The United States Supreme Court described the operation of this rule in Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988):

Rule 60(b)(6)... grants federal courts broad authority to relieve a party from a final judgment “upon such terms as are just,” provided that the motion is made within a reasonable time and is not premised on one of the grounds for relief enumerated in clauses (b)(1) through (b)(5). The Rule does not particularize the factors that justify relief, but we have previously noted that it provides courts with authority “adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice,” while also cautioning that it should only be applied in “extraordinary circumstances.”

(Footnotes and citations omitted.) Thus the question here is whether extraordinary circumstances exist in this ease such that justice requires reopening Judge Boldt’s decision of March 23, 1979. For the following reasons, the court concludes that the tribes’ motion should be denied.

B. Factors to be Considered

1. Timeliness

The parties opposing the motion challenge its timeliness, emphasizing that all of the facts now brought to the court’s attention about Judge Boldt’s failing health and the circumstances surrounding his decision were known in 1979 with the exception of the information on the death certificate issued in 1984. The opposing parties stress that death certificates are matters of public record readily available on request.

While it is true that fifteen years have passed since the decision at issue and ten years since Judge Boldt’s death, the court declines to deny the tribes’ motion on this ground alone. As the tribes’ counsel pointed out, it is not customary for litigants to comb a judge’s death certifícate in hopes of finding evidence supporting a challenge to the judge’s competency at the time he rendered a decision.

2. Public Interest in Finality of Judgments

Even if the moving tribes should not be held strictly account able for the long delay in challenging Judge Boldt’s decision, the court must still take into account the public interest in maintaining the finality of judgments. The law recognizes the need for stability in precedents and stare decisis. This case provides an excellent example of the damage that might result if parties to a case and the general public were unable to rely on court judgments.

The passage of time has markedly changed the landscape of this case. For many years now, state-tribal fish management plans have been drawn up and allocation decisions made in reliance on the 1979 judgment. Disturbing the judgment at this late date would prejudice many other parties who have depended on its finality. Moreover, in addition to damaging the interests of the parties in this particular case, there is the unmeasurable danger resulting from a precedent that would encourage parties to reopen judgments for the purpose of questioning judicial competency even long after the events in question.

3. Need for Correction of Injustice

But the moving tribes argue that the issue posed by this case brings the need for finality into direct conflict with the quest for justice, and that the need to correct an injustice should outweigh the need for finality. After carefully examining all of the events surrounding this case, the court concludes that, contrary to the moving tribes’ contention, it is not confronted with this exceedingly difficult determination because no manifest injustice was done.

The moving tribes do not assert that they were prevented from receiving a full and fair hearing by virtue of being unable to submit relevant evidence or arguments. The record reveals that they were given ample opportunity to submit exhibits, present testimony and file briefs in support of their respective positions. They raise instead the possibility that Judge Boldt may have suffered from a mental impairment at the time he signed the final order of March 28,1979 which rendered him incompetent to carry out his judicial functions.

But Judge Boldt was not the only judicial officer to review the moving tribes’ contentions and reach the same conclusion. On March 7, 1975, Magistrate Robert E. Cooper issued a report setting forth his independent conclusion that none of the moving tribes had established their status as a treaty tribe or the successor to a treaty tribe. This report was based on five days of hearings as well as testimony and evidence submitted by the moving tribes.

More significantly, the Ninth Circuit reached the same result in affirming Judge Boldt’s decision on appeal at 641 F.2d 1368 (9th Cir.1981). The moving tribes stress that the standard of review in such cases is not de novo, and that findings of fact are only reviewed for clear error. But it is apparent from the text of the appellate opinion that the Ninth Circuit did much more than that in this instance.

After reviewing Judge Boldt’s decision, the court concluded that the judge had applied the wrong standard in determining whether tribal structure had been maintained. The court went on to explain the proper scope of the inquiry and factors to be considered. Finally, the Ninth Circuit itself reviewed the evidence to determine whether, as a matter of fact, the groups in question had maintained an organized tribal structure since treaty time. The court concluded “[ajfter close scrutiny, ... that the evidence supported [the] finding of fact” that they had not done so, and that “the district court correctly resolved this question despite its failure to apply the proper standard.” (emphasis supplied) 641 F.2d at 1373,1374.

Given the language in the Ninth Circuit opinion indicating that the court carefully examined the evidence presented by the moving tribes before deciding to affirm Judge Boldt’s findings as correct, this court concludes that the moving tribes have failed to make the kind of showing of manifest error necessary to even consider reopening a judgment so many years after its entry. As the moving tribes acknowledge, the public interest in the finality of judgments is great, particularly in protracted, emotionally charged litigation like United States v. Washington, which aroused intense public reaction during the 1970’s. Whereas the need for continued reliance on the finality of Judge Boldt’s ruling is great, the court can find no countervailing need for disturbing that finality in order to correct a manifest error because the result does not rest on Judge Boldt’s decision alone.

III. CONCLUSION

The court concludes that the moving tribes have failed to demonstrate the existence of any extraordinary circumstances which would warrant reopening the final order of March 23, 1979 for the purpose of conducting discovery into Judge Boldt’s mental health. Their motion is accordingly DENIED.

ORDER GRANTING IN PART AND CONTINUING IN PART MUCKLE-SHOOT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Subproceeding No. 86-5

(July 5, 1995)

THIS MATTER comes before the court on a motion by the Muckleshoot Tribe for partial summary judgment on the question of clarifying two findings concerning the usual and accustomed fishing areas of the Lummi Indian Nation and the Swinomish Indian Tribal Community as previously adjudicated by the court. Having reviewed the motion together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows:

In 1974 and 1975, Judge George Boldt entered findings concerning the usual and accustomed fishing places of the Lummi Indian Nation and the Swinomish Indian Tribal Community. The Muckleshoot Tribe now moves for a clarification that those places as described by Judge Boldt do not include any portion of Puget Sound Commercial Salmon Management and Catch Reporting Area 10 (“Area 10”).

A. Compliance with Paragraph 25

Lummi and Swinomish both argue as a preliminary matter that Muckleshoot failed to follow the required procedure of convening an official conference pursuant to Paragraph 25 of the permanent injunction in United States v. Washington, and then filing a separate subproceeding. Although they are correct, they have not stated any practical reason for requiring technical compliance with Paragraph 25 under the circumstances of this case.

There is no question that both Lummi and Swinomish have had notice of the existence of the issue for several years. With regard to Lummi, Muckleshoot did convene and hold a conference. The court fails to see how Muckleshoot’s failure to file a separate subproceeding prejudices Lummi or affects Lummi’s ability to respond.

As for Swinomish, Muckleshoot brought the issue to the tribal community’s attention in writing as early as 1991 and exchanged correspondence with Swinomish over the course of the next 2-1/2 years. See Exs. A, B, C, J, K, L and R to Dec. of Gregory O’Leary filed on April 6, 1995.

This is not a situation in which Muckle-shoot seeks a factual or legal determination of a new issue. The only ruling sought is clarification of two findings in prior court orders. Since the parties have had ample notice, the court does not see the necessity for formal compliance with Paragraph 25.

B. Lummi Nation Fishing Areas

Judge Boldt’s Finding No. 46 at 384 F.Supp. at 360-61 in 1974 regarding Lum-mi’s usual and accustomed fishing places at treaty times states in relevant part that they “included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay.” United States v. Washington, 384 F.Supp. 312, 360-61 (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). Area 10 is roughly bounded on the north by the Edmonds-Kingston ferry lane. Muckleshoot insists that the Lummi adjudicated fishing places do not reach as far south as the northern boundary of Area 10.

In support of this contention, Muckle-shoot offers the declarations of University of Washington geography professor Richard Morrill and Muckleshoot biologist Paul Hage as well as the 1989 testimony of Dr. Barbara Lane. Lummi moves to strike the testimony of these three witnesses.

As to Richard Morrill and Paul Hage, the court concludes that Lummi’s motion has merit. Richard Morrill was not disclosed as a possible expert by the established deadline, and the court rejects Muckleshoot’s argument that he qualifies as a rebuttal expert. Moreover, the declarations of Mr. Morrill and Mr. Hage constitute new evidence which Judge Boldt did not have before him. The court concludes that the declarations supplement the record rather than assisting the court in determining Judge Boldt’s intent at the time of his decision.

However, Dr. Lane’s testimony is on a different footing in that it was her research and the ensuing report which Judge Boldt consulted in reaching a decision on the Lummi usual and accustomed fishing places. Even though the testimony cited by Muckleshoot was not given by Dr. Lane until 1989 in another subproceeding, it addresses the very same language on which Judge Boldt relied in making his finding in 1974. Under these circumstances, the court concludes that Dr. Lane’s testimony does not supplement the record, but assists the court in determining the original intent of the ruling.

Lummi also argues that Muckleshoot failed to list Dr. Lane as an expert for purposes of this subproceeding. While this is true, Dr. Lane is hardly a stranger to this litigation and the testimony invoked by Muckleshoot is already in the public record of another subproceeding. Under these circumstances, the court concludes that Dr. Lane’s testimony should not be stricken. Instead Lummi will be given an opportunity to depose Dr. Lane and to submit an additional response to Muckle-shoot’s motion.

C. Swinomish Indian Tribal Community Fishing Areas

In 1975, Judge Boldt entered Finding No. 6 at 459 F.Supp. at 1049, which stated that Swinomish’s usual and accustomed fishing places included “the Skagit River and its tributaries, the Samish River and its tributaries and the marine areas of Northern Puget Sound from the Fraser River south to and including Whidbey, Camano, Fidalgo, Guemes, Samish, Cypress and the San Juan Islands, and including Bellingham Bay and Hale Passage adjacent to Lummi Island.” United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash.1978) (Orders of March 8, 1975 and April 18, 1975). The most southerly point of land in Judge Boldt’s description is the southern tip of Whidbey Island, which is about seven miles north of the northernmost part of Area 10. Thus, Judge Boldt’s Finding No. 6 does not include any part of Area 10.

The response filed by Swinomish includes argument about other orders entered by the court, a declaration from an anthropologist, and excerpts from oral and written testimony by Dr. Lane on subjects other than the finding at issue. But all of this argument and evidence is outside the very narrow scope of the issue before the court, which focuses on the proper interpretation of the language of Judge Boldt’s Finding No. 6. None of the evidence offered by Swinomish addresses this narrow question.

Swinomish also argues that there is a genuine issue of material fact about whether Finding No. 6 encompasses some part Area 10 because the finding includes the marine areas surrounding Whidbey Island. Swinomish contends that the extent of those areas is ambiguous. Even assuming that Finding No. 6 might be construed to include marine areas surrounding Whidbey Island and that the actual extent of those areas is unclear, the court concludes that this ambiguity cannot be stretched to involve any waters in Area 10, which is a full seven miles south of Whidbey Island.

Muckleshoot’s motion for partial summary judgment is accordingly GRANTED as to Swinomish. The usual and accustomed fishing places of Swinomish as previously adjudicated by the court in Finding No. 6 at 459 F.Supp. at 1049 do not include waters within Area 10.

Muckleshoot’s motion for partial summary judgment is CONTINUED as to Lummi. Lummi is directed to inform the court within ten days of the date of this order about whether counsel wishes to depose Dr. Lane and if so, when the deposition will be scheduled and when Lummi’s additional response to Muekleshoot’s motion will be filed.

ORDER GRANTING MUCKLESHOOT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Subproceeding No. 86-5

(October 4, 1995)

This matter comes before the court on a motion by the Muckleshoot Tribe for partial summary judgment clarifying a finding concerning the usual and accustomed fishing areas of the Lummi Indian Nation. In a prior order entered on July 6, 1995, this court continued the motion so that Lummi could depose Dr. Barbara Lane. Having reviewed the supplemental briefs submitted by both Lummi and Muckleshoot as well as the other documents filed in support and in opposition, the court finds and rules as follows:

In 1974, Judge George Boldt entered Finding No. 46, which provides in relevant part that Lummi’s usual and accustomed fishing places at treaty times “included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bell-ingham Bay.” United States v. Washington, 384 F.Supp. 312, 360-61 (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) Muckleshoot now moves for a clarification that Judge Boldt’s Finding No. 46 does not include any portion of Puget Sound Commercial Salmon Management and Catch Reporting Area 10 (“Area 10”).

Area 10 is roughly bounded on the north by the Edmonds-Kingston ferry lane. Muckleshoot contends that the Lummi fishing places as adjudicated by Judge Boldt do not reach as far south as the northern boundary of Area 10.

The key to resolving this controversy lies in determining what Judge Boldt meant in precise geographic terms by his use of the phrase “the present environs of Seattle.” The findings themselves do not define the phrase.

However, this same phrase appears in paragraph 4 on page 26 of Dr. Barbara Lane’s “Anthropological Report on the Identity Treaty Status and Fisheries of the Lummi Indian Tribe” (1973) (Exhibit USA 30):

The traditional fisheries of the post-treaty Lummi included reef net sites in the San Juan Islands, off Point Roberts, Birch Point, Cherry Point, and off Lum-mi Island and Fidalgo Island. Other fisheries in the Straits and bays from the Fraser River south to the present environs of Seattle were utilized.

(emphasis supplied) Judge Boldt specifically cited pp. 23-26 of this report in support of Finding No. 46, 384 F.Supp. at 360, and the parties do not dispute that paragraph 4 of page 26 of Dr. Lane’s report is the source of the phrase in question.

When asked by the parties to this sub-proceeding during her recent deposition on August 16, 1995 about her use of the phrase “present environs of Seattle,” Dr. Lane testified that she was referring to a location no farther south than present-day Mukilteo. She also testified that, in preparing the Lummi report cited by Judge Boldt, she found no evidence of any Lum-mi treaty-time fisheries extending farther south than the area around Fidalgo Island. Both Mukilteo and Fidalgo Island lie north of the northern boundary of Area 10.

Lummi argues that the precise geographic meaning assigned by Dr. Lane to the phrase “present environs of Seattle” when she wrote her report was never communicated to Judge Boldt in any testimony or other evidence. Therefore, Lummi contends, it is not possible to conclude that Judge Boldt assigned the same geographic meaning to those words.

Even assuming that Judge Boldt was never apprised of Dr. Lane’s specific meaning, the court does not consider this determinative of whether it can be concluded that Judge Boldt implicitly adopted her meaning by using her language. It is abundantly clear from Judge Boldt’s findings in United States v. Washington that he relied heavily on Dr. Lane’s research and reports. In the decision containing Finding No. 46 now at issue, Judge Boldt expressly acknowledged the debt he owed to and the reliance he placed on Dr. Lane’s written reports in reaching his own conclusions about the issues before him:

The Court finds that in specific facts, the reports of Dr. Barbara Lane, Exhibits USA-20 to 80 and USA-53, have been exceptionally well researched and reported and are established by a preponderance of the evidence.

384 F.Supp. at 350. This court accordingly concludes that, by citing to and adopting Dr. Lane’s language about “the present environs of Seattle” without any amending explanation, Judge Boldt also meant to adopt her underlying meaning. In other words, when Judge Boldt referred in his findings to factual information or geographic descriptions contained in Dr. Lane’s reports, he also intended, unless otherwise indicated by specific language, to incorporate Dr. Lane’s definitions and reasoning into his own conclusions. Indeed, it would not make sense to find that Judge Boldt adopted Dr. Lane’s words but not her meaning without in any way informing the reader that he was deviating from her intended definition of the described geographic area.

Lummi contends that Muckleshoot seeks to relitigate or reinterpret Judge Boldt’s finding in the guise of clarification by reading into it evidence which was not before him. As discussed above, this court disagrees, concluding instead that it was Judge Boldt’s specific intent to rely on Dr. Lane’s research and sources. Therefore, this court concludes that Judge Boldt intended to adopt Dr. Lane’s reasoning as well as her conclusions unless otherwise specifically stated. There is no indication that Judge Boldt intended to construe the geographic scope of “the present environs of Seattle” differently from Dr. Lane.

In the alternative, even if Judge Boldt’s Finding. No. 46 cannot be clarified by adopting Dr. Lane’s definition of the “present environs of Seattle,” this court notes that Judge Boldt’s decision reserved continuing jurisdiction, among other things, to determine the location of a tribe’s usual and accustomed fishing grounds “not specifically determined by Final Decision No. 1,” as well as “such other matters as the Court may deem appropriate.” 384 F.Supp. 312, 419.

If Dr. Lane’s definition is not adopted, then the meaning of the phrase in question here was “not specifically determined by Final Decision No. 1,” since Judge Boldt failed to define his use of the term in precise geographic terms. Therefore, pursuant to the reservation of jurisdiction cited above, this court has the authority to make a supplemental finding.

The sole, narrow issue before the court concerns the proper interpretation of “the present environs of Seattle” as used in Finding No. 46. The court concludes that the only authority capable of clarifying the meaning of that phrase is Dr. Lane, the person who wrote those words and from whose report Judge Boldt extracted that language for use in Finding No. 46. Based on Dr. Lane’s testimony in her deposition of August 16, 1995 in which she explained the meaning she intended to attach to those words when she wrote her report, the court makes a supplemental finding that the phrase “the present environs of Seattle” as used in Finding No. 46 describes an area which extends no farther south than Mukilteo. Thus, under Finding No. 46, the Lummi have no usual and accustomed fishing places in Area 10.

Muckleshoot’s motion for partial summary judgment regarding the issue of whether Lummi has any usual and accustomed fishing places in Area 10 is accordingly GRANTED.

ORDER RE: GRANTING PRELIMINARY INJUNCTION

Subproceeding No. 96-1

(March 22, 1996)

ON FEBRUARY 29, 1996, this court granted a motion by the Makah Indian Tribe, the Quinault Indian Nation and the Hoh Indian Tribe for a preliminary injunction. This order sets forth the court’s reasons for that decision.

I. BACKGROUND

The three petitioning tribes participate in the treaty Indian blackcod fishery harvested in the Pacific Ocean off the coast of Washington. From its inception in 1989 until the 1995 season, the blackcod fishery had been exclusively a longline fishery.

On January 25, 1996, the petitioning tribes filed a request for determination regarding the management and allocation of the treaty Indian blackcod fishery. They alleged that the Quileute Indian Tribe, which also participates in the black-cod fishery, began using pot gear in 1995 to catch blackcod, thus permitting Quileute fishers to greatly augment their fishing power, and that the Quileutes were planning to increase markedly their pot gear capacity in the 1996 season.

The petitioning tribes contended that, absent relief from this court in the form of a preliminary injunction, Quileute fishers would largely preempt the longline fisheries of the petitioning tribes or force them to use pots or other more efficient gear in order to compete with the Quileutes. In the absence of an intertribal allocation, the petitioning tribes argued that such an unrestricted fishery would injure all of the tribes by leading to overcapitalization of the fleet, concentration of the fishery in a small number of individuals, business failures and unemployment. They asked the court to preserve the status quo by protecting the longline blackcod fishery.

In addition, the petitioning tribes alleged that the Quileute Tribe’s fisheries south of Destruction Island are outside of its usual and accustomed fishing grounds. They asked the court to enjoin the Qui-leute Tribe from fishing in that area.

In its response, the Quileute Tribe agreed with the petitioning tribes’ underlying request for an equitable allocation of the treaty blackcod fishery among the four coastal tribes. However, it asked the court to deny preliminary injunctive relief on the grounds that the Quileute Tribe’s use of pots will not preempt the petitioners’ fisheries or lead to economic decline. The Quileute Tribe also disputed petitioners’ allegations about the geographic boundaries of its usual and accustomed fishing areas.

II. LEGAL ANALYSIS

A. Standard for Preliminary injunction

The four equitable criteria for determining the appropriateness of preliminary injunctive relief are well established: (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if the preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest. Confederated Tribes v. Baldrige, 898 F.Supp. 1477, 1483 (W.D.Wash.1995), citing Los Angeles Memorial Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). A preliminary injunction is warranted if the petitioners demonstrate probable success on the merits and a possibility of irreparable injury or a fair chance of success on the merits and the balance of hardships tipping sharply in their favor. Alaska v. Native Village of Venetie, 856 F.2d 1384, 1388 (9th Cir.1988).

Having carefully reviewed the briefs and accompanying declarations and exhibits, and having heard oral argument, the court concludes that preliminary injunctive relief should be granted to maintain the status quo as it existed in the 1995 fishing season.

B. Use of Pot Gear

The evidence before the court indicates that vessels using pot gear can significantly increase their catch efficiency. Dec. of Dr. James Crutchfield, Exh. A at pp. 8-11; Dec. of Stephen H. Joner, pp. 9-10. Although the Quileute Tribe argues that the difference in catch efficiency between longline and pot gear has not been quantified for the blackcod fishery, it does not seriously dispute the improved catch rate for pot gear. Indeed, the hope of enhancing their ábility to compete in the blackcod fishery is precisely why the Qui-leute fishers wish to expand their use of pot gear.

The evidence before the court further suggests that if the Quileute Tribe expands its use of pot gear in a wide-open treaty blackcod fishery, other tribal fishers will be forced to either refit their current vessels or buy larger pot-equipped vessels in order to remain competitive. Left uncontrolled, this situation would result in fewer vessels employing less personnel fishing shorter seasons. Dec. of Dr. Crutchfield, Exh. A at pp. 11-14.

The Quileute Tribe tries to disavow the prospect of economic distress and decline offered by the petitioning tribes, but presents no evidence to refute it. The Quileute Tribe contends that the petitioners’ arguments about threatened preemption of their fisheries are without merit because Quinault’s percentage of the catch actually increased and Makah’s total catch doubled from 1994 to 1995. This misses the ultimate point of petitioner’s argument, which is that the Quileute Tribe’s unrestricted use of pot gear threatens to alter the nature of the fishery, which in turn bodes ill for the overall health of the tribal economies.

The court is convinced that the Quileute Tribe’s unrestricted use of pot gear threatens to significantly change the nature of the fishery by forcing other tribes to invest in pot gear. This would in turn lead to overcapitalization of the fishery, inability of smaller vessels which are incapable of switching to pot gear to compete in the fishery, lower employment, and inability of individual tribes to manage their share of the fishery to, meet their own tribal objectives and economic needs. In short, unrestricted use of pot gear could have a destructive, destablilizing effect on the already fragile economies of the participating tribes.

Thus, the court finds that petitioners have established that irreparable injury will result if the use of pot gear in the treaty blackcod fishery remains unrestricted without any concurrent agreement or determination about an equitable intertri-bal allocation of that fishery.

The court also finds that the balance of hardships tilts sharply in favor of the petitioning tribes’ argument that the use of pot gear should be restricted until the issue of apportioning the blackcod fishery is resolved. Maintaining the status quo from the 1995 season will permit Qui-leute fishers to use their pot gear to harvest roughly one-fourth of the overall quota, while ensuring that the nature of the blackcod fishery as a whole is not altered to the detriment of tribal economies.

Moreover, there is no question that the petitioning tribes have raised serious questions on the merits about the need for an equitable allocation of the blackcod fishery so as to preserve each coastal tribe’s treaty fishing rights.

C. Usual and Accustomed Fishing Areas

Regarding the issue of whether the area south of Destruction Island is one of the Quileute Tribe’s usual and accustomed fishing places, the court concludes that petitioners have raised serious questions on the merits.

However, the court finds that petitioners have not shown any likelihood of irreparable injury resulting from continued fishing efforts by the Quileute Tribe for fish other than blackcod in the contested area pending the resolution of the dispute. As for the Quileute Tribe’s blackcod fishery in that area, the court will enjoin Quileute fishers from using more than 100 pots, the status quo from the 1995 season, for the reasons outlined above.

III. CONCLUSION

The petitioning tribes’ motion for a preliminary injunction is GRANTED. For the 1996 treaty blackeod fishery, the Qui-leute Tribe shall comply with the following restrictions: (1) the Quileute Tribe’s total blackeod catch shall not exceed 27% of the overall treaty blackeod quota, and (2) the number of pots used in the blackeod fishery south of Destruction Island shall not exceed 100.

MINUTE ENTRY - IN CHAMBERS PROCEEDINGS:

Subproceeding No. 96-1

(April 10, 1996)

The court has reviewed the Quileute Tribe’s motion to alter or amend the judgment together with the petitioning tribes’ opposition, and DENIES the motion. The court finds that the Quileute Tribe has failed to establish manifest injustice or any other basis for reconsidering the court’s balancing of the equities in this case.

ORDER GRANTING MOTIONS FOR APPROVAL OF SETTLEMENT AGREEMENTS AND DENYING REQUEST THAT DISMISSAL WITHOUT PREJUDICE BY CONDITIONAL ON PAYMENT OF DEFENSE COSTS AND ATTORNEY FEES

Subproceeding No. 86-5

(July 9, 1996)

THIS MATTER comes before the court on motions seeking an order approving three settlement plans reached among various groups of tribes, and on a request by four tribes that the dismissal of this case be conditional on payment of their defense costs and attorney fees by the Muckle-shoot and Nisqually Tribes. Having reviewed the motions together with all documents filed in support and in opposition, the court finds and rules as follows:

The three agreements in question are as follows:

1. March 15,1996 Agreement

The Nisqually, Muckleshoot, Puyallup, Squaxin Island, Suquamish and Tulalip Tribes present an Intertribal Salmon Allocation Plan for South Puget Sound dated March 15, 1996, which has been approved and executed by authorized representatives of the party tribes.

2. April 23,1996 Agreement

The Muckleshoot, Nisqually and Makah Indian Tribes present a settlement reached among the three tribes dated April 23, 1996, which has been approved by resolution of all three tribal governing bodies and executed by the tribal chairs.

3. May 28,1996 Agreement

Thirteen tribes have entered into and their tribal governments have ratified a Settlement Agreement Regarding 1996-1999 (2000) Management Agreement for Puget Sound and Ocean Fisheries dated May 28, 1996. This agreement supersedes two previously filed agreements dated August 10, 1995 and May 9, 1996. The thirteen tribes include the Squaxin Island, Pu-yallup, Makah, Jamestown S’Klallam, Lower Elwha S’Klallam, Port Gamble S’Klallam, Skokomish, Lummi, Suquamish, Nooksack, Stillaguamish, Swinomish and Upper Skagit Tribes.

Having reviewed all of the memoranda submitted concerning the above-described agreements, and having determined that there is no objection to approving the agreements, the court hereby grants all three of the motions for approval.

This approval is made with the understanding that each agreement only binds signatory parties to that agreement, and that, where a party signed more than one plan and those plans have inconsistent provisions, the party will be bound by the provision resulting in the most restrictive fishery.

In response to a concern raised by the state of Washington, the court clarifies that the May 28, 1996 agreement is not intended to and does not modify prior agreements and court orders regarding tribal/state relations. Nor does the May 28, 1996 agreement alter any previous order, agreement or plan including any other party than the signatories to the May 28, 1996 agreement. The court further clarifies that the May 28, 1996 agreement does not preclude tribal fish managers from taking measures consistent with the Pacific Salmon Treaty and its implementing legislation.

Finally, the court denies the request by the S’Klallam and Skokomish Tribes that dismissal of this subproceeding be made conditional on payment by the Muckleshoot and Nisqually Tribes of all or a portion of the S’Klallam and Skokomish Tribes’ attorney fees and costs incurred in defending this subproceeding since August of 1995. Having reviewed the memoranda filed on this subject, the court is not convinced that Muckleshoot and Nisqually should be held responsible for paying the requested fees and costs. Muckleshoot and Nisqually had legitimate concerns which prompted them not to agree to dismissal of the case in August of 1995. Since then, the tribes involved in this litigation have concluded three agreements which will bring much needed stability to the fisheries involved for at least the next five years. At least some of the fees and costs incurred by the S’Klallam and Sko-komish Tribes since August of 1995 were expended in a successful effort to conclude the May 28, 1996 agreement, which will benefit them. The court accordingly finds no basis for conditioning dismissal of this case on the requested award of fees and costs.

The motions to approve the agreements of March 15, 1996; April 23, 1996 and May 28, 1996 are GRANTED. The request by the S’Klallam and Skokomish Tribes for an award of fees and costs is DENIED.

SETTLEMENT AGREEMENT REGARDING 1996-1999 (2000) MANAGEMENT AGREEMENT FOR PUGET SOUND AND OCEAN FISHERIES

Amending and Replacing August 10, 1995, Management Plan

Subproceeding No. 86-5

(May 28, 1996)

1. AGREEMENT 1201

2. TERM 1203

3. EFFECTS OF ADJUDICATION OF U & A FISHING AREAS 1203

4. INTERTRIBAL SHARING OF CHINOOK SALMON 1204

4.1 Scope 1204

4.2 Chinook Management and Allocation Basis 1204

4.3 Context and Basis of Agreement 1204

4.4 Management Intent 1205

4.5 1996-1999 Limitations on Preterminal Treaty Fisheries 1205

4.6 Bellingham Bay Treaty Chinook Fisheries 1206

4.7 Future Chinook Allocation and Management Plans 1206

4.8 Management Information 1207

4.9 Review 1207

4.10 Post Season Audits of Chinook 1207

5. INTERTRIBAL SHARING OF SOCKEYE 1207

5.1 Scope 1207

5.2 Sockeye Tribes 1207

5.3 Non-Treaty Share 1208

5.4 Intertribal Allocation of Fraser River Sockeye 1208

5.5 Intertribal Allocation of Puget Sound Sockeye 1209

6. INTERTRIBAL SHARING OF COHO SALMON 1210

6.1 Scope 1210

6.2 Non-Treaty Harvest Allocation 1210

6.3 Coho Harvest Limitations Applicable to Treaty Preterminal Fisheries 1210

6.4 Terminal Shares — South Sound 1212

6.5 Paybacks 1214

6.6 Terminal Shares 1215

6.7 Non-Local Terminal Area Interceptions 1216

7.INTERTRIBAL SHARING OF CHUM SALMON 0^ 1“1 03 i — l

7.1 Scope Oj i — I 03 i — l

7.2 British Columbia Chum Salmon Ailocation ■ Oj t — I 03 i — i

7.3 Puget Sound Chum Salmon Allocation CO 03 03 i-H

7.4 Management for Intertribal Sharing 03 03 l — l

8. TECHNICAL WORK 1224

9. PROCEDURAL LIMITATIONS 1226

10. COVENANT NOT TO USE 1227

11. PRINCIPLES 1228

12. THIRD PARTY BENEFICIARIES 1228

13. EFFECTIVE DATE 1228

1228 14. AUTHORIZATION AND COUNTERPARTS

MAY 28, 1996, SETTLEMENT AGREEMENT

REGARDING

1996-1999 (2000) MANAGEMENT

AGREEMENT FOR PUGET SOUND AND OCEAN FISHERIES

1. AGREEMENT.

1.1This agreement is entered this 28th day of May, 1996, by and between the Puyallup Indian Tribe, the Squaxin Island Tribe, the Makah Indian Tribe, the Lummi Indian Nation, the Upper Skagit Tribe, the Swinomish Indian Tribal Community, the Suquamish Indian Tribe, the Stillaguamish Indian Tribe, the Skokomish Indian Tribe, the Nooksack Indian Tribe, the Lower El-wha S’Klallam Tribe, the Jamestown S’Klallam Tribe, and the Port Gamble S’Klallam Tribe (hereafter the “Signatories”.). The Muckleshoot Indian Tribe, the Nisqually Indian Tribe, The Tulalip Tribes and the State of Washington are not parties to this Agreement.

1.2The Signatories desire to settle for a term of years the harvest allocation claims between them in Subproceeding 86-5 of United States v. Washington, Civil No. C71-9213, United States District Court for the Western District of Washington. These claims and this settlement agreement concern harvest allocation. Issues of conservation needs, primary rights and the total amounts of harvest available for allocation are expressly excluded. The issue of usual and accustomed fishing areas is, except as expressly provided herein, also expressly excluded.

1.3 This Agreement modifies, replaces and supersedes the document entitled the 1996-1999 (2000) Management Plan For Puget Sound And Ocean Fisheries, dated August 10,1995 (the “August 10 Han”) and submitted to the Court for adoption as a Court Order on that same date. This Agreement represents a compromise of the Signatories positions regarding the equities of allocation of harvestable treaty salmon in the case of United States v. Washington. This Agreement is not intended to serve as a basis for establishing equitable allocation principles outside the context of this Agreement or for determining what might constitute an equitable allocation of harvestable treaty salmon among the Signatories after the Agreement expires.

1.4 The terms of this Agreement are binding upon the Signatories. The Signatories agree to advocate these terms before the Court in any trial in Subproceed-ing 86-5 or any other litigation in which the terms of this Agreement are at issue. The obligation of advocacy shall be satisfied by the Suquamish, Puyallup or the Squaxin Island Tribe, if, at the request of any Signatory, the Suquamish, Puyallup or the Squaxin Island Tribe shall file or cause to be filed a statement that it supports the terms of this Agreement and is bound by the terms of this Agreement. Any Signatory is free to take any position it chooses with regard to a petitioner that seeks relief greater in extent or longer in duration than is specified in this Agreement, provided that no Signatory shall disavow the terms of this Agreement.

1.5 This Agreement sets forth intertri-bal principles for sharing salmon and certain sharing regimes. These regimes shall be in force for the next four years and shall apply to the harvest of salmon taken in the Ocean, the Strait of Juan de Fuca, the San Juan Islands, and Puget Sound. Unless expressly provided herein, nothing in this Agreement shall affect or alter the provisions of any other intertribal agreement or prior orders of the court regarding treaty fisheries, including the 1996-1999 (2000) Management Plan for Puget Sound Fisheries Area 10 and (the “Area 10 And South Plan”) to which the Squaxin Island, Puyallup and Suquamish Tribes are signatories. Nothing in the Area 10 and South Plan shall affect or alter the provisions of this Agreement.

1.6 This Agreement does not serve as the comprehensive agreement referred to in certain previous court orders and agreements between Tulalip and other tribes. Nothing in this Agreement shall modify, amend, or supersede the “Stipulated Settlement Agreement of Swinomish Tribal Community and the Tulalip Tribes dated June 9, 1983 (Docket No. 9071), or the Court’s Order Approving Settlement Agreement Between Swinomish Tribal Community and Tulalip Tribes Re Puget Sound Fishing Area Claims dated July 8, 1983 (Docket No. 9190) that incorporated the Settlement Agreement by reference.

1.7 References to SSMAP refer to The Salmon and Steelhead Management and Allocation Plan (“SSMAP”), dated August 31,1989, which was submitted to the Court as an attachment to the Mediator’s Final Report on September 12,1989 (Docket No. 11381). All references herein to SSMAP are for convenience only and do not imply adoption of SSMAP, in whole or in part.

1.8 Certain provisions of this Agreement require consent of the “affected parties” before the Signatories may take action mentioned in such provisions. As used in such provisions, the term “affected parties” means all tribal parties who, after notice, indicate that such action would affect their interests. For actions that this Agreement contemplates the Signatories will take during preseason planning, the Signatories agree that notice to all affected parties’ fisheries directors shall be notice to all affected parties.

1.9 The Signatories agree that they will make good faith efforts to commit the necessary effort and resources to fulfill the requirements of this Agreement.

1.10 This Agreement when approved by the Court shall be entered as an enforceable Order of the Court Prior to July 1 of 1996 and prior to June 1 of each year thereafter, any Signatory may file with the Court an annual management plan for the Puget Sound and ocean fisheries developed pursuant to this Agreement and, in the event that such plan is contested, any Signatory may request the Court to adopt the annual plan as a Court Order.

2. TERM

2.1 The term of this Agreement shall be a four year period beginning at the end of the 1995/1996 winter troll fishing season and continuing through the end of the 1999/2000 winter troll fishing season. If on or before April 1, 1999, the Signatories have not agreed to an allocation agreement addressing treaty fisheries for the 2000/2001 fishing season, then the term of this Agreement shall be extended for one additional year through the end of the 2000-2001 winter troll fishing season.

2.2 The term of the Agreement recognizes the fact that, at present, there is insufficient agreed-upon information on stock composition in the various fisheries to permit adequate accounting of impacts and allow for the formation of a consensus on long term management and allocation plans. The intent of this Agreement is to create the stability in fisheries and inter-tribal relations for the affected parties to undertake the technical and policy work tasks that are needed in order to achieve a longer term intertribal sharing regime as outlined in Section 8 of this Agreement.

3. EFFECTS OF ADJUDICATION OF U&AFISHING AREAS.

3.1 During the term of this Agreement, the conduct of fisheries by the Swinomish and/or Lummi tribes in Areas 9 and 10, shall be governed by the following provisions.

3.1.1 .Conduct of Fisheries in Area 10.

a. Lummi. The Lummi Nation will not authorize or conduct fisheries in Washington Department - of Fish and Wildlife Commercial Salmon Catch Management and Reporting Area 10 (“Area 10”) during the term of this Agreement. The Lummi Nation will not authorize or conduct fisheries in Area 10 after the term of this Agreement unless it first secures a judicial determination that it has treaty fishing rights in Area 10.

b. Swinomish. As a result of the Court’s July 5, 1995 Order, the question of Swinomish usual and accustomed fishing places in Area 10 may remain to be determined. The Signatories to this Agreement agree not to oppose a request for determination by the Swinomish Tribe regarding its usual and accustomed fishing places in Area 10 during the term of this Agreement.

3.1.2 Conduct of Fisheries in Area 9.

a. If the Lummi Tribe shall prevail in Subproceeding 89-2 then the Lummi Tribe agrees not to exercise any fishing rights which may be confirmed in Subproceeding 89-2 during the term of this Agreement.

b. The Swinomish Tribe may participate in Area 9 test and evaluation fisheries for any species of salmon, conducted consistent with provisions of this Agreement. Nothing in this Agreement shall preclude any tribe from participating in any Subproceeding concerning the adjudication of Swinomish usual and accustomed fishing places in Area 9; provided however that all Signatories agree not “to initiate” any legal challenge to Swinomish usual and accustomed fishing places in Area 9 during the term of this Agreement. Specifically, for research/test fisheries directed at chum salmon under provisions of Section 7.4.8 of this Agreement, the Swinomish Tribe shall participate and cooperate in the planning, acquisition of necessary funds, test harvest, and analysis of the results. Swinomish participation in test fisheries shall be under provisions of Section 7.4.8 and accounting of test catches shall be governed by existing provisions of the Puget Sound Salmon Management Plan (PSSMP). In fisheries, conducted under provisions of Section 7.4.8 that do not meet the test fishery criteria of PSSMP, i.e. evaluation fisheries, the Swinomish Tribe agrees to comply with the following conditions:

i) Conduct its fishery in areas that are within the Swinomish usual and accustomed fishing places.

ii) Comply with the annual experimental design called for by Section 7.4.8 of this Agreement.

iii) Demonstrate that its fishery will not exceed its allowable harvest, by providing appropriate limitations, such as closing the area west of the Foulweather — Liplip line, and implementing limits on the number and types of boats and gear,

iv)Limit catches to the levels established by the test/evaluation design.

4. INTERTRIBAL SHARING OF CHI-NOOK SALMON.

4.1 Scope. This section applies to the harvest of chinook salmon stocks that originate and are taken in Puget Sound, the Strait of Juan de Fuca, the San Juan Islands and the Point Roberts Area. Although this section prescribes no specific management measures for ocean fisheries, the harvest of Puget Sound chinook stocks taken in the ocean (including Area 4B during the ocean management period) are taken into account.

4.2 Chinook Management and Allocation Basis.

4.2.1 Escapement Policy. This chapter prescribes no changes in escapement policies established in the Puget Sound Salmon Management Plan regarding chinook.

4.2.2 Treaty/Non-treaty Allocation. This chapter prescribes no changes in Court-determined provisions governing Treaty/Non-treaty allocations (i.e., 50/50 sharing between Treaty and Non-treaty); nor does it change the existing management and allocation basis of the various races of chinook (e.g., spring chinook, summer/fall chi-nook).

4.3 Context and Basis of Agreement. At the time this section was developed, relatively few Treaty fisheries targeting on Puget Sound chinook existed in Puget Sound. The non-treaty recreational fishery, the Strait of Juan de Fuca and San Juans treaty troll fisheries, and, to a lesser extent, the Strait of Juan de Fuca Treaty set net fishery all target on mixed Puget

Sound chinook stocks. The limited scope of commercial fisheries for chinook salmon largely is a consequence of the depressed condition of many Puget Sound chinook stocks and the paucity of information on stock-specific fishery impacts.

4.4 Management Intent. The intent of this section is to support Puget Sound chinook salmon rebuilding efforts now underway pursuant to the Pacific Salmon Treaty and state and tribal management and enhancement programs. To this end, the Signatories agree to:

4.4.1 freeze at existing levels Treaty chinook fisheries in preterminal and mixed terminal areas. Fisheries shall be limited only to those authorized during the 1989-95 period, until the Signatories agree that:

a. currently-depressed Puget Sound chinook stocks can support greater harvests;

b. additional technical information and capabilities are available to improve management options (e.g., shaping of fisheries); and,

c. in the absence of closures required for conservation, a Treaty chinook troll fishery in the San Juan Islands may be opened under the same regulations used diming the years 1989-1995.

4.4.2 seek complementary management actions in non-treaty fisheries to ensure that all affected parties and the State of Washington are contributing equally to rebuilding efforts.

4.5 1996-1999 Limitations on Pretermi-nal Treaty Fisheries. The fishery limitations prescribed in this Section 4 are the result of the low runs anticipated and are in no way intended to define the potential extent of Treaty chinook fisheries. At the end of the term of this Agreement, these limitations shall be re-evaluated to determine the extent to which the limitations should be relaxed, expanded, otherwise modified, or terminated. During the term, taking into account the depressed condition of Puget Sound chinook stocks and the need for harvest constraints, the tribes agree:

4.5.1 to permit no new treaty fisheries targeting on Puget Sound chinook salmon in any preterminal or mixed terminal areas of Puget Sound, unless otherwise agreed;

4.5.2 to permit no expansion of Treaty fisheries authorized during 1989-95 targeting on chinook salmon in any preterminal or mixed terminal areas of Puget Sound, unless otherwise agreed;

4.5.3 to continue to limit incidental chi-nook harvests by appropriate time, gear, and area restrictions for all fisheries that impact weak chinook stocks;

4.5.4

a. to limit the total annual harvest by winter treaty troll in Areas 4B, 5 and 6C and summer treaty troll in Areas 5 and 6C so as not to exceed the 1986-1990 average exploitation rate on contributing Puget Sound stocks applied to the current year estimated abundance of those stocks.

b. The current year abundance and average exploitation rates shall be determined by using the methodology applied under the 1994 and 1995 annual treaty fishing plans.

c. The Signatories agree that the methodology for determining the current year abundance and average exploitation rate may be changed during the term of this Agreement, but only with the consent of all the affected parties to this Agreement. •

d. Ceilings will be calculated for each of four time periods (January-April, May-June, July-October, and November-December). Any overage or underage from the November-December time period shall be applied to the ceiling calculated for the subsequent January-April time period. These ceilings do not apply to net fisheries in the Strait of Juan de Fuca that target on local stocks (Hoko Bay, Pysht Bay, Freshwater Bay, Dungeness Bay, Crescent Bay, Clallam Bay), provided that estimates of the impacts of these fisheries on non-local stocks are deemed acceptable by affected tribes;

4.5.5 that the tribes that participate in the Strait of Juan de Fuca chinook winter troll fishery will develop and implement an annual fishing plan for the Strait of Juan de Fuca chinook fishery in consultation with other affected tribes. The plan for each season shall be completed by November 1 of that season, and should include management actions designed to implement the ceilings described above. Those actions may include subdividing the season into time periods with associated limits, size limit restrictions, allocation of chinook between the tribes that fish in the SJF, and/or other appropriate measures to achieve the specified harvests. After November 1 there will be no Strait of Juan de Fuca troll fishery until the tribes that participate in the fishery have agreed to such a plan;

4.5.6 to use only barbless hooks in the SJF troll fishery;

4.5.7 to close the Treaty troll fishery in Areas 4B, 5, 6, and 6C during the spring chinook migration period (approximately April 15-June 15 in Areas 5, 6, and 6C and April 15-80 in Area 4B) subject to complementary actions taken by the State of Washington which result in protection for the stocks of concern equivalent to that provided in their recreational and commercial 1990 regulations package, and by terminal area tribes in their respective fisheries, to limit impacts and enhance these stocks;

4.5.8that if the exploitation rate on Puget Sound chinook in Treaty ocean troll fisheries deviates by more than 10% from the 1986 through 1990 average exploitation rate scalars on contributing Puget Sound stocks applied to the current year predicted abundance of those stocks, the affected tribes will calculate, for policy action, adjustments to the Strait of Juan de Fuca ceiling that account for the amount of change in impact on Puget Sound chinook that occurs in the Treaty ocean troll fishery.

4.6 Bellingham Bay Treaty Chinook Fisheries. Unless otherwise agreed, in order to improve the opportunity of gillnet fishermen, tribes with fishing rights in Areas 7B or 7C shall not authorize the use of purse seines for more than two days per week, in Areas 7B and 7C. These tribes agree to resci