United States v. Washington (19 F. Supp. 3d 1252, 1999)

United States District Court for the Western District of Washington 1999-12-31

Citations

Full opinion text

TABLE OF CONTENTS

ORDER PAGE

Stipulation and Order Concerning Co-Management and Mass Marking (4/28/97) 1256

Order Granting Swinomish Motion for Temporary Restraining Order (6/16/97) 1266

Order Granting Swinomish Tribe’s Motion for Preliminary Injunction (7/30/97) 1267

Stipulation Regarding S’Klallam Tribes’ Usual and Accustomed Fishing Places (2/10/98) 1270

Order regarding Cross-Motions for Preliminary Injunction (6/12/98) 1270

Order Granting Respondent’s Motion to Dismiss in Part, Granting Petitioners’ Motion to Strike in Part and Scheduling Pretrial Conference (8/5/98) 1272

Order Denying Lummi’s Motion to Dismiss and for Summary Judgment and Granting the Four Tribes’ Motion to Dismiss (9/2/98) 1277

Stipulated Settlement Agreement of the Swinomish Indian Tribal Community and the Upper Skagit Indian Tribe (10/21/98) 1280

Order Denying State of Washington’s Motion for Summary Judgment and Granting Quinault Nation’s Cross-Motion for Summary Judgment (12/3/98) 1294

Stipulation of the Upper Skagit Tribe and the Tulalip Tribes Concerning Upper Skagit Tribe’s Usual and Accustomed Fishing Places (1/23/99) 1297

Order Approving Stipulated Settlement Between Lummi Nation and Upper Skagit Indian Tribe (2/16/99) ' 1300

Order Approving Stipulated Settlement Between Swinomish and Upper Skagit Indian Tribe (2/16/99) 1303

Order Approving Stipulation of the Upper Skagit Tribe and the Tulalip Tribes Concerning Upper Skagit Tribe’s Usual and Accustomed Fishing Places (2/16/99) 1304

Order Granting Petitioner’s Motion for Summary Judgment, Denying Respondent’s Motion for Summary Judgment and Dismissing Subproceeding (9/10/99) 1304

Order Altering and Amending Judgment (10/18/99) 1312

Minute Entry: In Chambers Proceedings (10/21/99) 1312

Order Granting Muckleshoot Tribe’s Motion for Summary Judgment (11/4/99) 1312

Order Granting Motion to Alter or Amend Judgment (12/9/99) 1315

Order Clarifying Implementation Order re Tribal Access Across Private Upland Property (12/11/99) 1315

COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS

(Through December 31, 1999)

STIPULATION AND ORDER CONCERNING CO-MANAGEMENT AND MASS MARKING

Subproceeding No. 96-3.

(April 28, 1997)

BARBARA JACOBS ROTHSTEIN, District Judge.

1. Stipulation.

1.1. The purpose of this Stipulation is to reaffirm and help clarify established principles and guidelines affecting management of fisheries resources subject to the authorities and obligations of the various Washington treaty tribes and, on behalf of the State of Washington, the Washington Department of Fish and Wildlife (‘WDF & W”). This Stipulation does not precisely define nor does it create, expand, or diminish any party’s legal rights or jurisdictions, provided, however, that procedural rights are created by paragraphs 1.7, 1.8, and 1.9.

1.2The WDF & W and each of the signatory Washington treaty tribes have independent and differing authorities, mandates and responsibilities for developing and implementing management programs to protect, enhance, and utilize fish and wildlife resources in a sustainable manner within their respective jurisdictions.

1.3 The WDF & W has certain responsibilities for managing fish and wildlife resources and non-treaty fisheries within the boundaries of the state and adjacent to the Washington coast. This jurisdiction and responsibility must be exercised in conformity with the state’s obligations to comply with treaty Indian fishing rights reserved by the tribes by federal treaty and/or defined by federal court decisions and orders. The treaty tribes have certain responsibilities for managing fish and wildlife resources and treaty fisheries within their reservations and certain fisheries resources and treaty fisheries within and/or passing through their respective usual and accustomed areas. This jurisdiction and responsibility also must be exercised in conformity with rights reserved by federal treaty, as interpreted by federal court decisions and orders.

1.4 The overlapping nature of their respective jurisdictions and authorities creates a co-management relationship between the state and the treaty tribes in the sense that: WDF & W and the respective tribes have certain authorities that potentially pertain to the same fisheries resource, there is a need for all parties to cooperate in the discharge of their respective authorities, certain federal court orders prescribe cooperative and coordinated fishery management actions and activities, and generally, the application of state law to treaty fisheries is preempted unless such application is in compliance with applicable federal court orders. Various state/tribal plans and intertribal plans and numerous federal court orders prescribe how the WDF & W and the tribes are to exercise their respective authorities. These plans and court orders reflect the fact that actions taken by one party often can affect other parties, and that the mul-ti-jurisdictional nature of management can lead to conflicts between the parties.

1.5 To minimize such conflicts, and to promote effective and efficient management of those fish and wildlife resources that are subject to both state and tribal management, the WDF & W and tribes have developed a cooperative management approach to the exercise of their respective authorities. The approach was developed and must be maintained based on the principles of government-to-government relationships. Its successful implementation depends upon joint planning, regular consultation, explicit objectives, and agreed data to foster consistent and coordinated management programs, while respecting the legitimate decision-making authorities of each party.

1.6 WDF & W and the treaty tribes shall continue to refine this cooperative approach to further increase efficiencies, improve resource management, reduce conflict between objectives, and avoid the need to resort to judicial or other third party dispute resolution mechanisms. It is expected that the cooperative approach will continue to resolve the majority of issues. Because the WDF & W and the treaty tribes have legitimate prerogatives in the exercise of their authorities and conduct of their fisheries, disputes between competing or co-existing objectives or conflicting interpretations of applicable law sometimes may arise.

1.7 Before taking any fisheries management action which would reasonably be expected to affect another party’s fisheries any party shall give reasonable written notice of the action to each affected party. Notice shall be considered reasonable if it provides adequate time under the existing circumstances for any affected party to notify the proponent that the particular issue is disputed, and allow time for a request for dispute resolution as provided in this document, as well as application to the court for relief as contemplated by the provisions of the court’s August 23, 1993 Order Modifying Paragraph 25 of Permanent Injunction.

1.8 The WDF & W and tribes shall, prior to taking any disputed action affecting another party, attempt a voluntary resolution of any dispute which the routine cooperative planning process described above fails to anticipate or adequately resolve. They shall refer the dispute to policy representatives designated by the affected tribes and the WDF & W. Any party may request a policy meeting on an issue in dispute upon timely, reasonable and written notice of the existence of the dispute to all affected parties. Utilizing support staff as they may desire, they will attempt promptly to resolve the dispute, utilizing a government-to-government approach.

1.9 No party shall take any action regarding the management of its fisheries which would reasonably be expected to affect another party’s management of its fisheries without agreement of that party or without first following the dispute resolution procedures contained in paragraphs 1.7 and 1.8 of this Stipulation, Provided, however, that harvest management regulatory actions or intertribal agreements already subject to existing court orders shall comply with those orders, rather than this paragraph.

1.10 In the event that the WDF & W and treaty tribes are unable voluntarily to resolve a dispute in accordance with paragraph 1.8, a party may resort to judicial review and resolution, pursuant to rules and procedures previously established by the federal court.

1.11 To foster the continued vitality and refinement of this cooperative management approach, the Director of the WDF & W and tribal representatives will conduct an annual meeting to be held no later than May 15 of each year, unless otherwise agreed by all parties. The agenda for discussion shall include, but not necessarily be limited to, the following:

1.11.1 Evaluating the effectiveness of the previous year’s harvest management plans and practices in meeting established management objectives;

1.11.2 Considering new and/or reviewing ongoing management processes, planning activities, policies, and practices;

1.11.3 Review the previous year’s habitat, enhancement, enforcement, and other fisheries management programs;

1.11.4 Establishing priorities and action plans for management activities for the coming year;

1.11.5 Identifying any disagreements to be resolved by policy and/or technical subgroups;

1.11.6 Identifying ways to improve the cooperative working relationship in the coming year; and

1.11.7 Other issues, as jointly agreed.

1.12 In dealing with federal and international fisheries management entities, including, but not limited to the Pacific Salmon Commission or its suceessor-in-in-terest, the parties shall be guided by this document and the co-management principles enunciated herein, and shall cooperatively develop regulatory or management actions which are consistent with federal court orders in U.S. v. Washington and Hoh v. Baldrige.

1.13 The parries hereby agree to the Coho Mass Marking and Selective Fisheries Implementation Plan (“Implementation Plan”), attached hereto as Exhibit A and incorporated herein by reference.

1.14 The undersigned parties agree to jointly request that the court adopt this Stipulation and Implementation Plan as an order of the court.

ORDER

1. The court has jurisdiction over the subject matter of this subproceeding.

2. The court has examined the foregoing Stipulation and the attached “Coho Mass Marking and Selective Fisheries Implementation Plan.” The court finds that the Stipulation and Implementation Plan represent a fair and equitable settlement of the disputes in this subproceeding.

3. The Stipulation and “Coho Mass Marking and Selective Fisheries Implementation Plan” are hereby adopted as a court order and incorporated herein. This Order is binding on the signatories to the Stipulation and shall be enforceable by them in the same manner and same respect as any other district court order in this case. In the event that the continuing jurisdiction of the court in United States v. Washington shall be terminated, then the court retains such jurisdiction as is necessary to enforce the terms of this Agreement.

4. This order binds all parties which signed the Stipulation, including the State of Washington. However, the provisions concerning the notice and dispute resolution of actions reasonably expected to affect fisheries, shall, at this time, apply only to the Washington Department of Fish & Wildlife or its successor-in-interest, and any other state agency which may in the future be assigned any of the current functions of the Department, whether by legislative, judicial or executive action, and to other state agencies carrying out fisheries management functions pertaining to fin fish. This order is not intended to affect the claims of the treaty tribes that all departments of Washington state government should be bound by similar provisions. This order is without prejudice to those claims or positions being raised or advocated in the future.

5. This is a final order in this subpro-ceeding. The agreed preliminary injunction, and the Order Modifying Temporary Restraining Order and Establishing Schedule dated December 24, 1996, are hereby dissolved and replaced by this order. This subproceeding is deemed complete.

IMPLEMENTATION PLAN:

Coho Mass Marking and Selective Fisheries

April 23, 1997

I. General provisions.

A. Purpose and intent. The purpose of this plan is to establish requirements for implementing programs for the mass marking by removal of the adipose fin of hatchery coho, originating from Grays Harbor and northward, including Puget Sound, and for implementing fisheries that would selectively harvest marked fish in a manner that would affect management of fisheries resources subject to the authority and obligations of treaty tribes party to this plan. The mass marking of coho salmon intended for release from tribal facilities may only proceed upon agreement between the pertinent state, tribal and/or federal parties involved. It is the intent of the parties to this plan to insure that mass marking and any selective fisheries for coho are implemented in a manner that facilitates conservation of the coho resource, benefits both treaty and non-treaty fisheries, and maintains a viable coastwide coded-wire tag (CWT) program. The parties intend to achieve the expected benefits of this new management strategy in a manner that is consistent with maintaining their ability to properly manage the coho resource and with meeting other legal obligations of the parties. This plan replaces a mass marking and selective fisheries Memorandum of Understanding, signed by some of the parties to this plan, dated May 3,1996.

B. Parties. The parties to this plan are the Washington Department of Fish and Wildlife (WDFW), the Puget Sound and Washington coastal treaty Indian tribes who signed the April 1997 stipulation to which this plan is appended (tribes), the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS).

C. Plan amendments. The parties commit to modifying this plan as necessary, by agreement, in response to information gained from ongoing evaluations.

D. Plan duration. This plan will be reviewed by the parties no later than November, 2002. As part of this review, the parties will reach agreement on whether it should be continued, modified, or terminated.

E. Dispute Resolution. The parties commit to good faith technical- and policy-level efforts, as described in the “Stipulation and Order Concerning Co-management and Mass Marking” approved by the court on or about April 30, 1997, to attempt to resolve in a timely manner any disputes that may arise in connection with this plan, prior to initiating legal actions arising from such disputes. The parties may also explore and employ other jointly agreed dispute resolution approaches.

F. NMFS and USFWS Participation. NMFS and USFWS will participate in good faith in the processes described in Section III paragraphs A through E, however, the processes described are primarily state and tribal processes. NMFS fishery management authority in the EEZ stems from the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. and other federal laws, and NMFS and USFWS are not parties to this agreement for the purpose of these paragraphs. Implementation and ongoing adherence to this plan by NMFS and USFWS shall be subject to the availability of appropriated funds.

II. Mass Marking

A. Mass marking plans must be finalized annually by April 1 for coho which, due to fish culture considerations, must be tagged and/or marked in the spring, and by October 1 for those that can be tagged and/or marked in the autumn. Each party will provide its plans for mass marking to the other parties by February 1 of each year, identifying which production will be mass marked, which stocks will be “double index” coded-wire tagged, and the schedule for marking and tagging. Because sufficient time must be allowed to accommodate resolution of any disagreements, the parties will schedule their efforts so as to reach agreement by March 1 and September 1 of each year for spring and autumn groups, respectively. If agreements have not been reached by those dates, the parties will initiate appropriate dispute resolution to be completed by April 1 and October 1, respectively. Any mass marking being disputed in accordance with these timelines will not occur until the dispute is resolved. Any proposed modifications of previously-agreed or established plans that affect which stocks would be mass marked or double index tagged, or the agreed proportions that would be mass marked, must be provided to the parties at least 30 days prior to the affected marking or tagging, and agreement reached (or disputes promptly resolved) to accommodate the proposed change.

B. Those 1996 brood year hatchery coho groups listed in the attached Table 1 will be mass marked during the spring and summer of 1997, provided, however, that any mass marking of Green River, Crisp Creek production for Soos Creek shall be determined by a memorandum of understanding (MOU) between the state, Muekle-shoot and Suquamish Tribes.

C. The Pacific Salmon Treaty (PST) commits the United States and Canada to “maintain a coded-wire tagging and recapture program designed to provide statistically reliable data for stock assessments and fishery evaluations.” Appropriate coordination with Canada is a critical element of maintaining the viability of the coastwide CWT program (a definition of a viable CWT program is provided in Paragraph 10.4 on pages 180-181 of the PSC’s June, 1995 AdHoc Selective Fisheries Evaluation Committee (AHSFEC) report; this definition is subject to further refinement among the parties per Paragraph III.E.5, below). In January 1997, the Pacific Salmon Commission (PSC) agreed to establish procedures for exchanging, evaluating, and coordinating mass marking and selective fisheries proposals. It also agreed to establish a permanent bilateral Selective Fisheries Evaluation Committee (SFEC) to provide appropriate scientific advice to the PSC and the parties. The PSC has developed and adopted a specific work plan to identify and address technical feasibility issues to facilitate informed policy judgment on mass marking and selective fisheries. Accordingly, pursuant to their own needs and consistent with the PSC’s January 1997 agreement and its SFEC’s work plan, the parties to this plan will:

(1) cooperate and coordinate their efforts with the longer term process and schedule to be developed by the PSC;

(2) complete the following short-term technical tasks prior to the PSC’s February, 1997 meeting:

(a) review and finalize technical reports of 1996 field studies regarding efficacy of electronic detection technologies;

(b) develop plans for evaluating 1995 and 1996 brood coho programs;

(c) initially define fishery sampling program logistics and costs; and,

(d) define plans for conducting additional field studies for 1997;

(3) develop, implement, and maintain agreed CWT sampling plans that provide for adequate sampling rates and, where necessary for CWT retrieval, electronic detection methods, to meet the intent of the commitment under the PST to maintain the viability of the coastwide CWT program, including providing for statistically reliable data for stock assessments and fishery evaluation.

D.WDFW will be responsible for reasonable increased costs incurred by the tribes required by this mass marking and selective fisheries plan. These envisioned costs specifically include providing for equipment use and maintenance, costs of marking and tagging operations, and increases in staff for CWT sampling, if any are required. This responsibility will be met by providing funds to the tribes directly, by securing new, outside funding sources, and/or by providing equipment and direct technical assistance. NMFS and USFWS will explore opportunities they may have to assist the parties in meeting these obligations as well as other activities of this implementation plan. WDFWs obligations for costs incurred by a tribe (or tribes) will be reduced in the event the tribe(s) chooses to benefit from the mass marking program by conducting selective fisheries; the extent of the reduction in WDFW’s obligations will be determined by the parties, taking into account the full range of benefits accruing to the affected parties due to selective fisheries.

E. When conducting mass marking, the parties will use hatchery culture, handling, and marking/tagging practices that will minimize mortalities caused by these activities.

III. Selective Fisheries

A. The parties understand that selective fishery options will be evaluated on their individual merits in the context of the elements of this plan; they are not assured simply because mass marking has occurred. Selective fisheries will be implemented, if appropriate, according to the terms described below.

B. Selective coho fisheries, will be implemented only as part of agreed annual fishery management plans that address a broad range of coho fisheries. These annual plans, which include defining levels of impact on coho stocks of concern by all fisheries, will continue to be negotiated and agreed to through the so-called “North of Falcon” process unless otherwise agreed by the parties. These plans will not require use of selective fisheries by any tribe, unless otherwise agreed, in order to meet spawning escapement objectives, treaty/non-treaty allocation standards, and inter-tribal and other harvest sharing objectives of the parties. Selective fisheries will be implemented in a manner that meets treaty Indian fishing rights.

C. Proposals for selective fisheries will provide sufficient information to meet the needs described in Appendix C of the “Pacific Salmon Commission Selective Fishery Evaluation” report (June 9,1995).

D. Unintended effects on individual treaty fisheries, including dislocation and/or disruption, could occur due to unforeseen circumstances of the mass marking and selective fisheries program. The parties will address such potential fishery effects and resolve any conflicts in the course of modeling, evaluation and planning efforts described herein. It is the intent of this section that established treaty/non-treaty sharing principles will be adhered to.

E. WDFW and the Puget Sound tribes other than Makah will develop agreed, comprehensive coho management plans under the frameworks of existing court ordered salmon management and allocation plans, including without limitation the intertribal allocation agreements approved by the court in Subproceeding 86-5, or subsequent stipulations or orders of the court following the expiration of the current agreements. These plans would be partially implemented for Puget Sound stocks with the planning of 1998 fisheries. Full implementation of all elements would occur with the planning of the 1999 season. To meet this requirement, the parties will complete the tasks as described and scheduled in Attachment 1. Development of long-term coho management plans for coastal coho stocks may proceed separately. The parties will encourage involvement by other interested managers to insure that coastwide coordination needs are met. Agreed coho management plans developed under this provision shall be binding only to the parties thereto absent further orders of the court. Comprehensive coho management plans will include:

1. rules for implementing annual fishing schedules,, given expected abundance of wild stocks;

2. definition of spawning escapement levels that would be achieved, on the average, and levels that would avoid unacceptable risks to stock health;

3. fishing regimes (levels of exploitation) for treaty and non-treaty fisheries that are expected to achieve conservation and treaty sharing obligations, and meet inter-tribal and other harvest sharing objectives of the parties;

4. procedures for evaluating performance of annually implemented fishing regimes toward meeting stated goals and objectives, and for modifying the plan accordingly, as may be appropriate;

5. an assessment and refinement of the definition of a viable CWT program (e.g., selection of indicator stocks, tagging levels, sampling rates, sampling methods) that provides for effective implementation, evaluation and assessment of this plan’s objectives; and,

6. a habitat component that assesses habitat relative to performance standards and quantitatively estimates the relationship between habitat condition and production.

F. Preseason fishery planning and post-season stock assessments are highly dependent upon the use of management planning tools (models). Recognizing that selective fisheries introduce requirements beyond the capability of existing models, and desiring to minimize any impacts on existing analytical capabilities, the parties are committed to and will cooperatively develop, prior to the 1998 season, modified or new models with the capability of planning and assessing impacts of fishery regimes that include selective fisheries. It is recognized that there will be a one or two year transition period, during which modified versions of currently-available models (modified to accommodate evaluation of selective fisheries) will be replaced with new, improved models with updated capabilities, i.e., that more comprehensively improve analytical capabilities. Consistent with the foregoing, and to meet short term needs, the parties will revise, for review by July 1, 1997, the existing Fishery Regulation Assessment Model (FRAM). In addition, the parties will cooperate in the development and review of improved models for use in the longer term.

G. The parties will participate cooperatively in the Selective Fisheries Evaluation Committee (SFEC) established by the Pacific Salmon Commission (PSC). Working as the bilateral SFEC whenever possible, or independently as may be necessary to accomplish the parties’ objectives in a timely manner (e.g., if Canada chooses not to participate or is unable to participate sufficiently to meet the parties’ time lines), the parties’ will direct their representatives on the SFEC to:

1. evaluate all fishery and hatchery electronic sampling tests conducted during 1996, and provide a summary evaluation by February 15, 1997;

2. in 1997 initiate the development of CWT estimation methods for use under selective fisheries regimes;

3. evaluate any mass marking returns and selective fisheries conducted during 1997. Agency reports on these activities will be distributed to the SFEC by January 15, 1998. The SFEC will provide a summary evaluation of these activities by March 1, 1998;

4. Evaluate as necessary:

a. proposed sample designs for testing sampling technology;

b. new or improved methods for mass marking;

c. adequacy of the CWT single and double index tagging program;

d. implications of revisions in marking programs;

e. sampling programs in selective fisheries, non-selective fisheries, and escapement;

f. the performance of stock assessment models;

g. the success of mass marking and selective fisheries in meeting identified objectives.

H. Any party that authorizes a selective fishery will, itself, or in cooperation with other parties, implement appropriate programs to monitor and evaluate its stock specific impacts. Selective fisheries "will be monitored to obtain valid estimates of retained catch and encounter rates, and estimates of the proportion of marked fish caught in all fisheries will be made by February 1 of the following year.

I. Any party that authorizes a selective fishery will, itself, or in cooperation with other parties, develop appropriate education and enforcement programs to insure compliance with its selective fishery regulations.

J. WDFW will not diminish its priority for. habitat protection as a consequence of non-treaty fisheries focusing on hatchery produced fish.

K. Estimates of non-landed fishery mortality caused by any fishery, including selective fisheries, will be accounted for in meeting conservation and allocation objectives.

ATTACHMENT 1

COMPREHENSIVE COHO WORK PLAN

4/15/97

A. FRAMEWORK

1. Develop and agree to basic framework intent of plan, including goals, objectives, elements, performance standards and mechanisms. The June, 1994 Comprehensive Coho interim report will be the starting point for the framework description. (7/1/97)

B. ESTABLISH ESCAPEMENT POLICY (Intended to be implemented beginning with the 1998 season).

1. Identify escapement policy intent for various management units/stocks (e.g., key wild stocks).

2. Specify exploitation intent and target escapement rates for various abundance levels required to meet spawning escapement intent, (provisional value defined — 7/1/97; recommendation provided — 11/30/97).

3. Specify intent and values for tolerance ranges around exploitation/escapement rates, (provisional value defined — 10/30/97; recommendation provided — 11/30/97).

4. Specify various escapement thresholds that trigger management response. (7/1/97; 11/30/97).

5. Define management steps in response to identification of critical management unit/stock status levels. (10/31/97).

C. FISHERY MANAGEMENT (Intended to be implemented beginning with the 1999 season).

1. Decide which fisheries and fishing areas will be managed together. (7/1/97).

2. Specify which fisheries will be managed for which stocks/management units. (7/1/97).

3. Develop annual response mechanisms/rules for different stock status scenarios. (9/30/98).

4. Establish different fishery regimes/levels (e.g., quotas, seasons, exploitation rates, etc.) corresponding to different stock abundances, including selective fisheries, and addressing adjustments to be taken when predicted exploitation rates are outside tolerance ranges, (provisional value defined — -8/31/98; recommendation provide — 10/31/98)

D. HABITAT MANAGEMENT

1. Specify performance standards, steps and strategies, incorporating traditional knowledge, to protect and restore habitat (potentially from WSP), and the framework under which habitat actions would be taken, given habitat-production model outputs, (provisional-10/31/97; recommendation provided 4/30/98).

2. Identify the process and habitat management actions if predicted escapements fall below critical levels and/or stock productivity declines to unacceptable levels, (provisional 10/31/97; recommendation provided 4/30/98)

E. GENETIC CONSERVATION AND ECOLOGICAL INTERACTION GUIDELINES

1. Define a work plan that will incorporate genetic conservation and ecological interaction goals, objectives, performance standards into the comprehensive coho management plan, (provisional — 10/31/97; recommendation provided 11/30/97).

F. HATCHERY PRODUCTION

1. Specify guidelines and standards for coho supplementation. (10/31/97).

2. Define annual and long-term production goals, (review Equilibrium Brood Document). (10/31/97).

G. EVALUATION, MONITORING AND MODIFICATION

1. Develop and modify tools (e.g., simulation models and cohort reconstruction) to evaluate proposed fishery regimes and other management standards or actions (e.g., selective fisheries) taken under the plan (as identified in A-F above). (7/1/97 and 7/1/98).

2. List and prioritize research needs identified during plan development. (12/31/97 and 12/31/98).

3. Specify the parameters and values that will be developed and analyzed during annual performance review of the plan’s implementation and describe how to apply analysis results to improvement of the plan. (12/31/98).

4. Identify the process and resource management actions to take if estimated stock capacities or produetivities change significantly from current levels, (provisional 10/31/97; recommendation provided 4/30/98)

5. Describe the process for longer-term (e.g., 4 years) comprehensive review of the plan and procedures for modifying. (12/31/98).

H. DECISION PROCESS

I. Develop policy decision process work plan and schedule, including any participation required by any potentially effected interests. (7/1/97).

2.Review and reach agreement on plan elements for partial initial implementation in 1998, and full implementation in 1999, — includes evaluating plan’s likelihood of meeting defined framework objectives, (partial — 11/30/97; full — 12/31/98).

3.Develop 1998 work plan for finalizing all elements of the plan for 1999 implementation and long-term implementation, (12/31/97).

TABLE 1

1996 BROOD COHO SPRING MASS MARKING GRAYS HARBOR NORTH AND PUGET SOUND

Total to

Complex Facility be Marked Timeframe Index Comments

Green River Soos Creek 600,000 May Crisp Creek production

Hood Canal George Adams® 500,000 June-July 45K, 45K

Minter Creek Minter Creek 1,250,000 May 50K Coulter production

Skagit Marblemount® 700,000 July 45K, 45K

PUGET 3,050,000 SOUND

Total to

Complex_Facility_be Marked Timeframe Index_Comments_

Grays Harbor Bingham Creek 1,800,000 May-July 75K, 75K Includes Satsop _Springs program

Grays Harbor Humptulips@ 2,000,000_May-July_80K, 80K_

Grays Harbor Lk. Aberdeen 35,000_May-July_

GRAYS 3,835,000

HARBOR

ORDER GRANTING SWINOMISH MOTION FOR TEMPORARY RESTRAINING ORDER

Subproceeding 97-2

(June 16, 1997)

THIS MATTER comes before the court on a motion for temporary restraining order by the Swinomish Indian Tribal Community. Having reviewed the motion together with all documents submitted in support and in opposition, having held a hearing at which oral argument was presented, and being fully advised, the court finds and rules as follows:

Swinomish seeks an order temporarily restraining the Upper Skagit Tribe from engaging in a crab shellfishery within the exterior boundaries of the Swinomish Reservation and within that portion of Washington Department of Fisheries (WDF) Area 8 north of a line running from Snate-lum Point on Whidbey Island and extending east to, but not including Camano Island and further excluding that portion of WDF Area 8 adjacent and subjacent to Camano Island.

It is undisputed that Swinomish and Upper Skagit entered into an interim agreement in March of 1994. On the face of that agreement, Upper Skagit agreed not to conduct any commercial or subsistence shellfíshery within the Swinomish Reservation without Swinomish’s consent or any commercial shellfish harvest north of the Snatelum Point line described above without a written agreement between Swinomish and Upper Skagit.

Based on the evidence currently on the record in this case, the court finds that Swinomish has shown a likelihood of success on the merits as well as the possibility of immediate and irreparable injury if Upper Skagit is not temporarily restrained from engaging in the crab shellfíshery set forth in Upper Skagit Regulation CRB97-002 issued on May 19,1997.

Swinomish’s motion is accordingly GRANTED. It is hereby ordered that the Upper Skagit Tribe, its officers, agents, servants, employees and attorneys, and those in active concert or participation with them who receive actual notice of this order by personal service or otherwise, are immediately severally and jointly temporarily restrained from harvesting crab in WDF Area 8 north of a line running from Snatelum Point and extending east to, but not including Camano Island and further excluding that portion of Area 8 adjacent and subjacent to Camano Island, and from within the exterior boundaries of the Swi-nomish Reservation. This temporary restraining order is in effect until June 26, 1997.

A bond in the amount of $10,000 shall be posted by Swinomish. This order becomes effective upon delivery of the bond to the Clerk of Court.

ORDER GRANTING SWINOMISH TRIBE’S MOTION FOR PRELIMINARY INJUNCTION

Subproceeding No. 97-2

(July 80, 1997)

THIS MATTER comes before the court on a motion by the Swinomish Indian Tribe (Swinomish) seeking to enjoin the Upper Skagit Indian Tribe (Upper Skagit) from opening fisheries which Swinomish deems to be in violation of an Interim Agreement and Stipulation entered into between the two tribes. Having reviewed the pleadings filed in support of and in opposition to the motion together with the testimony of witnesses both live and through declarations, and having heard argument of counsel, the court finds and rules as follows:

I. RELIEF SOUGHT

While the matter comes before the court on a motion for preliminary injunction, the parties agree that they have presented to the court all of the evidence and briefing relevant to the issues in this case. That being the case, the court finds that there is no reason not to rule on the merits of the case, to wit: What is the import of the Interim Agreement, and how does it affect the rights of Upper Skagit to open the fisheries it seeks to conduct?

II. BACKGROUND

In May of 1989, various Indian tribes filed subproceeding 89-3 (“the shellfish case”) asserting a treaty right to shellfish. At the time, the issue as to whether Upper Skagit could establish an expanded usual and accustomed fishing area in Washington Department of Fisheries Area 8 (WDF Area 8) was a contentious one among the tribes. In order to present a united position and to avoid intertribal disputes complicating the shellfish case, Upper Skagit attempted to resolve its differences with the other tribes by means of agreements. To that end, it entered into settlement agreements with the Tulalip Indian Tribe, the Lummi Indian Tribe and Swinomish. It is the Interim Agreement between Swi-nomish and Upper Skagit that gives rise to the subproceeding currently before this court.

The Interim Agreement provides that Upper Skagit will not commercially harvest shellfish in WDF Area 8 within the exterior boundaries of the Swinomish Reservation, within Turner’s Bay, and north of a line running from Snatelum Point on Whidbey Island and extending east to Camano Island. Furthermore, Upper Skagit agreed not to conduct subsistence shellfish harvests within the exterior boundaries of the Swinomish Reservation or north of the Snatelum line in any areas that Swinomish was “managing and harvesting as commercial shellfish areas.”

III. THE DISPUTE

Upper Skagit essentially agrees with the above description of the agreement. What is in dispute is the meaning of certain terms within the agreement. The parties have vastly differing views on the import of these terms. To resolve these differences, the court heard evidence about the context in which the agreement was negotiated, bearing in mind that while testimony may be helpful in clarifying terms used in the agreement, it may not be used to change or rewrite the agreement entered into by the parties. U.S. Life Credit Life Ins. Co. v. Williams, 129 Wash.2d 565, 919 P.2d 594 (1996).

Both of the negotiators of the Interim Agreement testified: Lorraine Loomis on behalf of Swinomish, and Doreen Maloney on behalf of Upper Skagit. In essence the parties’ disagreement revolves around two issues: 1) The meaning of the term “shellfish”; and 2) the nature of the commercial management exclusion.

A. Meaning of the term “shellfish”

Upper Skagit contends that the term “shellfish” as used in the agreement was intended by the parties to include only clams and other embedded shellfish. Upper Skagit offered testimony that neither Lorraine Loomis nor Doreen Maloney specifically referred to other species of shellfish during the negotiations but rather that their discussions centered on clams and beaches. Swinomish responds that there was no need to be specific because it was well established that the term shellfish encompassed all kinds of shellfish including crab, shrimp, and geoducks as well as clams.

It is clear from the testimony that, taken in the context in which it was negotiated, the agreement encompasses all shellfish. The agreement was negotiated against the background of subproceeding 89-3. In that case, all of the tribes, including Upper Skagit, recognized the importance of giving the term shellfish the broadest possible meaning. Any tribe using the word would have reasonably expected it to be given the broadest meaning and to be inclusive of all shellfish species.

Furthermore, Upper Skagit negotiated two other agreements in the same time frame, one with the Lummis and one with the Tulalips. In both of those agreements, the term “shellfish” was used in its broadest meaning to include all shellfish species. If Upper Skagit intended shellfish to have a completely different and narrower meaning in the context of its agreement with Swinomish, it would have had to make that meaning clear in the language of the document. Knowing that the question of fishing rights between the two tribes was seriously contested, Upper Skagit had to state its meaning very precisely and clearly if it intended fewer limits on its intrusion into Swinomish’s area. Upper Skagit could not rely on a unilateral intent to give the term “shellfish” an unexpectedly narrow meaning not explained in the specific language of the agreement.

B. Meaning of the commercial management exclusion

Both tribes concur that the agreement intended to. exclude subsistence shellfishing by Upper Skagit in areas managed and harvested as commercial shellfish areas by Swinomish. What the parties dispute is whether the Interim Agreement was intended to limit the exclusion to those areas that were already being managed as commercial areas at the time the Interim Agreement was signed by the parties, namely WDF Beach #240150 and WDF Beach #240140 in Penn Cove, or whether the exclusion would also apply to all future commercially managed areas.

Upon reviewing the evidence surrounding the negotiations leading up to the final agreement, the court finds that it is clear that the agreement was intended to also cover future commercial areas. By letter dated August 25, 1993, Doreen Maloney wrote to Lorraine Loomis:

1. We are willing to agree to an interim management plan under which Upper Skagit would be able to exercise its treaty right to harvest shellfish, both subsistence and commercial, in Areas 8 and 8A except as follows: ... Penn Cove: subsistence shellfishing only in areas outside of current Swinomish commercial shellfish harvesting, specifically those portions of WDF Beach # 240150, and WDF Beach # 240140 in Penn Cove, (emphasis added)

Allan E. Olson, Swinomish tribal attorney, responded to Ms. Maloney in a letter dated October 15,1993:

Lorraine asked me to convey to you one change to the Upper Skagit proposal (August 25, 1993) on shellfish harvest in Skagit Bay....

The change is in your first paragraph .... Subsistence shellfishing would be permitted north of the Snatelum Point line, but no subsistence shellfish-ing would be permitted in Swinomish commercial shellfish harvesting areas. Please let me know if this reflects your discussions with Lorraine and whether or not this is acceptable to the Upper Skagit Indian Tribe.

Most significantly, the Olson letter deletes any use of the word “current” and any limitation to the two specific beaches then under commercial management. On November 2, 1993, Doreen Maloney wrote to Lorraine Loomis essentially adopting the language proposed by Mr. Olson and indicating that Upper Skagit agreed to it. The draft sent by Allan Olson to Harold Chesnin, tribal attorney for Upper Skagit, adheres to the language presented in the Olson letter of October 15,1993.

The final agreement contained the language as drafted by Swinomish. Upper Skagit signed the agreement without its own proposed language that would have included the limited exclusion it now urges the court to read into the agreement. There is nothing in the current language of the agreement or the surrounding context that supports the interpretation propounded by Upper Skagit. On the contrary, all of the evidence supports Swinomish’s contention that Upper Skagit agreed not to conduct subsistence fishing wherever Swi-nomish was engaged in commercial harvesting.

IV. IRREPARABLE HARM

Since the court finds that Swinomish prevails on the meaning of the Interim Agreement, the court need not address the issue of irreparable harm. However, if the court did so, it would find that, on the evidence before it, there would be irreparable harm to Swinomish if Upper Skagit were allowed to fish as its regulations now provide.

V. CONCLUSION

Swinomish’s motion for preliminary injunction is hereby GRANTED. Upper Skagit is enjoined from implementing regulations that conflict with the express language of the Interim Agreement.

STIPULATION REGARDING S’KLAL-LAM TRIBES’ USUAL AND ACCUSTOMED FISHING PLACES

Sub-Proceeding No. 89-2

(February 11, 1998)

COME NOW the parties hereto, the Lummi Nation by and through its undersigned attorney, Daniel A. Raas of the Office of Special Counsel — Raas, Johnsen & Stuen, P.S., and the Jamestown S’Klal-lam, Lower Elwha S’Klallam, and the Port Gamble S’Klallam Indian Tribes, being represented by Kathryn Nelson of Eisenhower Carlson, PLLC, and stipulate as to the issues in this subproceeding:

1. This subproceeding concerns the usual and accustomed fishing grounds and stations of the present day Lummi Nation.

2. This subproceeding does not concern, and the parties do not intend to ask the Court to decide, any questions regarding the usual and accustomed fishing grounds and stations of the Jamestown S’Klallam, Lower Elwha S’Klallam, Port Gamble S’Klallam, or any one of these tribes.

ORDER

The foregoing Stipulation is hereby approved.

ORDER REGARDING CROSS-MOTIONS FOR PRELIMINARY INJUNCTION

Subproceeding 96-1

(June 18,1998)

In May, 1997, the Quileute Indian Tribe, the Makah Indian Tribe and the Quinault Indian Nation (the “Settling Tribes”) entered into a Settlement Agreement designed to resolve the inter-tribal disputes raised in Subproceeding 96-1. The Settlement Agreement established a management and allocation scheme for the Settling Tribes’ blackcod fisheries.

In 1998, the Settling Tribes began operating their blackcod fisheries under the terms of the Agreement. However, during the course of the season a series of disputes erupted over the proper interpretation of the Agreement. The facts surrounding these disputes are set out in detail in the parties’ briefs and, therefore, will not be repeated here.

Having considered the entire factual record and the briefs and the arguments of counsel, the Court HEREBY DECLARES AND ORDERS as follows:

1. Under sections 1 and 12 of the Settlement Agreement, Quinault tribal members cannot fish for blackcod on Hoh vessels when the Quinault fisheries are closed pursuant to the Agreement. Section 6 does not allow members of the Settling Tribes to fish on Hoh vessels during closed periods because such fishing would circumvent the entire purpose of the Agreement which is to allocate fishing opportunity between the Settling Tribes. Prohibiting Quinault members from fishing on the Hoh vessel during closures will not restrict the Hoh Tribe’s participation in the- fishery. The Hoh’s stated reason for relying on Quinault assistance is that the Hoh Tribe requires training to participate in the blackcod fishery. The Hoh, however, have already had training during a part of this season and there is a Hoh tribal member presently able to skipper a Hoh vessel. Any additional training required by the Hoh can be obtained by means other than using Quinault members during closures. The Hoh, for example, can send tribal members to observe or actually fish on vessels owned by the Quileute and Qui-nault. The Hoh can also learn to fish from other Hoh members who received training this season.

2. If Quinault members fish on Hoh vessels during periods when the Settling Tribes’ blackcod fisheries are open, the catch shall be allocated in the following manner. During the “B” & “C” fisheries the entire catch shall be counted against the B or C quotas, as the case may be. During the opening of the Quinault Nation’s “A” fishery, the Quinault “A” share shall be assessed a share of the Hoh/Qui-nault catch in proportion to the compensation which will be presumed to be paid the Quinault fisherman. The Court presumes that the overall crew share is equivalent to 35% of the catch, 45% of the catch is used for overhead and 20% of the catch is for the skipper. Accordingly, the assessment against the Quinault “A” share shall equal 35% of the joint catch multiplied by the ratio of Quinault crewmembers to total crew members on the vessel. For example if there are 4 crew members, one of whom was a Quinault tribal member, 8.75% of the joint catch would be assessed against the Quinault “A” fishery. In making this ruling, the Court recognizes that the parties have not submitted evidence on the issue of whether the presumed crew share correctly reflects the wages paid to crew members on the Hoh vessel. Therefore, the Court is willing to reconsider these figures if the parties offer additional evidence. The remainder of the joint catch shall be assessed equally against the Settling Tribes’ “A” shares.

3. In its motion for a preliminary injunction, the Quinault requested a head start on the “C” fishery this year. The Quinault contended that they did not have adequate notice of a Quileute and Makah decision to reopen the “B” fishery on April 22, 1998 and that a head start was necessary to remedy the injury allegedly done by the inadequate notice. The Court disagrees and denies the Quinault’s request for a head start. The Court finds that the emergency opening of the “B” fishery was sui generis and is thus unlikely to reoccur in the future once guidance has been given on the proper interpretation of the Settlement Agreement. Under the circumstances, Makah and Quinault could not have provided the Quinault with earlier notice. Moreover, the Court finds that the Quinault’s actions precipitated the crisis that lead to the opening and therefore, the Quinaults are not entitled to any equitable relief.

4. The Quinault also asked this Court to establish a notification period for future openings of the blackcod fishery under the Settlement Agreement. The Quinault suggest that 72 hours notification should be required before a Tribe opens its fishery. On the record before the Court, it is impossible to determine exactly what notification period is most appropriate. Therefore, the Settling Tribes are directed to try and negotiate a mutually acceptable notification period which can be used for future openings under the Settlement Agreement. If the Settling Tribes are unable to do so, the Court will consider imposing a uniform notification period based on a full eviden-tiary record.

5. The Quileute and Makah also moved this Court for an order establishing an allocation scheme for any Hoh catch caught during the Settling Tribes’ “A” fisheries. Under the Settlement Agreement, the “A” fisheries were designed to provide each of the Settling Tribes with a fixed equal share of blackcod. The fairest manner to preserve this agreed sharing arrangement for the “A” fishery is to charge all the Settling Tribes equally with a share of the Hoh catch caught when any Tribes’ “A” fishery is open. This equal sharing shall not cease because one or more Tribes conclude their “A” fisheries first. Any overages of a Settling Tribe’s “A” share caused solely by the allocation of the Hoh catch occurring after a Settling Tribe’s fishery has closed shall be charged to the offending Tribe on a one to one basis in the following year but only to the extent that the overage deprived another Tribe of a portion of its “A” share.

6. The Quinault portion of the Hoh/Quinault catch which was landed prior in 1998 prior to this Court’s ruling shall be assessed against the Quinault’s “A” share in the manner set out in ¶ 2 above.

ORDER GRANTING RESPONDENT’S MOTION TO DISMISS IN PART, GRANTING PETITIONERS’ MOTION TO STRIKE IN PART AND SCHEDULING PRETRIAL CONFERENCE

Subproceeding 97-1

(August 5, 1998)

I. BACKGROUND

The Swinomish, Suquamish and Puyall-up (three Tribes) have asked the court to interpret Judge Boldt’s Finding of Fact (FOF) 76. FOF 76 defines the Muckle-shoot’s usual and accustomed fishing places (U & A):

Prior to and during treaty times, the Indian ancestors of the present day Muckleshoot Indians had usual and accustomed fishing places primarily at locations on the upper Puyallup the Carbon, Stuck, White, Green, Cedar and Black Rivers, the tributaries to these rivers (including Soos Creek, Burns Creek and Newaukum Creek) and Lake Washington, and secondarily in the saltwater of Puget Sound.

United States v. State of Washington, 384 F.Supp. 312, 367 (1974). In dispute is what areas Judge Boldt intended “Puget Sound” to encompass. The three Tribes argue that the Muckleshoot’s saltwater treaty fishing places under FOF 76 are limited to Elliott Bay. They seek a declaratory judgment that the Muckleshoot’s U & A does not include waters within Department of Fisheries Areas 10, 11 or waters West and North of Area 10 and an injunction preventing the Muckleshoot from fishing those areas. The Muckleshoot argue that the term “Puget Sound” cannot be interpreted to limit its fishing area to Elliott Bay and that Judge Boldt intended the phrase “Puget Sound” to include the inside marine waters from the Canadian border to Olympia in the Muckleshoot’s U & A.

The three Tribes have filed a motion for summary judgment. The Muckleshoot have filed a cross motion to dismiss. The three Tribes have also filed a motion to strike portions of the Muckleshoot’s brief in opposition to their summary judgment motion and two documents in support of that brief: Dr. Barbara Lane’s 1998 affidavit and a 1993 shellfish report by Dr. Lane and Lynn Larson. While these motions were pending, the Ninth Circuit Court of Appeals issued an opinion in Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (1998). This court asked the parties to file supplemental briefing to address what if any impact the Ninth Circuit’s opinion had on the pending motions.

II. DISCUSSION

A. Ninth Circuit’s Muckleshoot Opinion

In Muckleshoot, the Ninth Circuit upheld this court’s determination that the Swinomish do not have fishing rights in Area 10 of Puget Sound by virtue of a reference to “Whidbey Island” in FOF 5. The Ninth Circuit, however, reversed this court’s determination of the meaning of the phrase “present environs of Seattle” with respect to the Lummi’s U & A. The Ninth Circuit held that this court erred in considering Dr. Lane’s understanding of the phrase, which she articulated in a 1995 deposition, to determine Judge Boldt’s intent. And it held that the court erred in relying on paragraph 25.f as authority to clarify the meaning of terms used in the decree or to resolve an ambiguity with supplemental findings. The Ninth Circuit held that paragraph 25.a was the source of the court’s authority to consider such matters. Finally, the Ninth Circuit held that the court should have given the Lummi an opportunity to present additional evidence on the meaning of “environs of Seattle.” The Ninth Circuit remanded for further proceedings consistent with its opinion under subparagraph 25.a.

The Ninth Circuit’s opinion in Muckle-shoot is relevant to three issues in this case. One, whether the term FOF 76 is ambiguous. Two, the court’s jurisdiction over the three Tribes’ claims. And three, whether the court can consider evidence outside the record before Judge Boldt in resolving any ambiguities in FOF 76.

B. Motion to Dismiss/Summary Judgment

The three Tribes seek a declaratory ruling that the Muckleshoot do not have fishing rights in Areas 10, 11 and points beyond. Both sides agree that the Muck-leshoot have fishing rights in 10A, which is Elliott Bay. With respect to areas 9, 10 and 11, the Muckleshoot argue that the three Tribes’ claim should be dismissed for lack of ambiguity. With respect to the areas beyond Areas 9, 10, and 11, the Muckleshoot argue that the claim should be dismissed because the court does not have continuing jurisdiction over it.

1. Ambiguity

As a threshold issue, the court must decide if the term “Puget Sound” is ambiguous. Whether an ambiguity exists is a question of law. State Farm Mut. Auto. Inc. Co. v. Fernandez, 767 F.2d 1299, 1301 (9th Cir.1985). A judgment is ambiguous if it is “susceptible to more than one interpretation.” Narramore v. United States, 852 F.2d 485, 490 (9th Cir.1988). Where a judgment is susceptible to two interpretations, the court should adopt an interpretation that renders the judgment “more reasonable, effective and conclusive in light of the facts and the law of the case.” Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d 871, 885 (6th Cir.1943). If a judgment is unambiguous, the court may not consider extraneous evidence to explain it. Narramore, 852 F.2d at 490. If a “a judgment is ambiguous or fails to express the rulings with clarity, the entire record before the issuing court and the findings of fact may be referenced in determining what was decided.” Muckleshoot, 141 F.3d at 1359. The court must construe the judgment “to give effect to the intention of the issuing court.” Narramore, 852 F.2d at 490.

Ambiguity may be intrinsic or extrinsic. Intrinsic ambiguity is present when a judgment is unclear on its face. U.S. v. National Steel Corp., 75 F.3d 1146, 1149 (7th Cir.1996). An extrinsic (or latent) ambiguity exists when the ambiguity is not apparent on the face of the instrument, but it becomes apparent when the instrument is applied to the facts as they exist. Matter of Estate of Bergau, 103 Wash.2d 431, 436, 693 P.2d 703 (1985).

The three Tribes contend that the term “Puget Sound” is ambiguous in light of the record. And they argue that Judge Boldt’s reference to a primary and secondary dichotomy (in the phrase “secondarily in the saltwater of Puget Sound”) renders FOF 76 inherently ambiguous. They contend that the Muckleshoot’s predecessors were upriver Indians with fisheries primarily in the freshwater of the Duwamish drainage who descended to fish at the river’s mouth in Elliott Bay. The record, they argue, contains no evidence that they fished in the open marine waters beyond Elliott Bay. They argue that there is no factual dispute regarding the record that was before Judge Boldt when he entered FOF 76 and summary judgment, therefore, is appropriate. The Muckleshoot argue that there is no textual ambiguity in FOF 76 and the court, therefore, has no authority to issue a new finding interpreting Judge Boldt’s original finding.

FOF 76 is ambiguous because it is susceptible to more than one interpretation. The Muckleshoot argue that “Puget Sound” encompasses the entire inside marine waters from the Canadian border to Olympia. The three Tribes argue that “Puget Sound” is not a phrase that is used consistently and there is no set description of which waters are included in Puget Sound. Furthermore, Judge Boldt’s use of the term “secondarily” to describe the Muckleshoot’s U & A in Puget Sound is ambiguous. As the three Tribes argue, Judge Boldt may have used the term “secondarily” to indicate that the Muckleshoot made more restricted use of saltwater fisheries than their river fisheries listed in FOF 76. And, if so, it is not clear if the restriction is one of frequency, species, amount or geography.

2. Evidence admissible to resolve an ambiguity

Because the phrases “Puget Sound” and “secondarily” are ambiguous, the next issue is what evidence the court can consider to resolve the ambiguity. The three Tribes contend that the Ninth Circuit’s Muckleshoot opinion forecloses consideration of evidence that was not in the record before Judge Boldt. They argue that the opinion allows extra record evidence only if the record does not contain any evidence clarifying the issue before the court and the ambiguity, therefore, cannot be resolved from the record. The three Tribes argue that the ambiguity in this case can be resolved by reference to the record alone. The Muckleshoot maintain that there is no ambiguity. But, if the court finds otherwise, they argue that the Ninth Circuit’s Muckleshoot opinion only bars imputation of Dr. Lane’s personal understanding of the record to Judge Boldt; it does not otherwise bar this court’s consideration of other evidence.

The Ninth Circuit held that this c