United States v. Washington (19 F. Supp. 3d 1317, 2003)

COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 2003) STIPULATION AND ORDER RE: FRASER RIVER SOCKEYE SALMON

(February 11, 2000)

BARBARA JACOBS ROTHSTEIN, District Judge.-

TABLE OF CONTENTS

ORDER PAGE

Stipulation and Order re: Fraser River Sockeye Salmon (2/11/2000) 1323

Order Denying Private Land Owners’ Motion for Reconsideration and Granting-in-Part and Denying-in-Part Private Land Owner’s Motion for Amendment of the Court’s Clarifying Order (2/25/2000) 1330

Consent Decree (8/18/2000) 1331

Memorandum of Understanding Re: Coastal Coho Management (8/31/2000) See Appendix

Order Establishing Interim Halibut Fishery Management Plan (3/20/01) 1332

Order on Summary Judgment Motions (4/5/01), 143 F.S.2d 1218 See Appendix

Proposed Order re Amendment to Paragraph G of Order for Program to Implement Interim Plan (5/8/01) 1335

Order Granting United States’ and Denying Washington’s Motions for Judgment (9/6/01) 1336

Order Granting United States’ Motion for Reconsideration and Motion to Dismiss State’s Cross-Request for Determination (10/26/01) 1340

Minute Entry: In Chambers Proceedings (3/18/02) 1343

Stipulation and Order Amending Shellfish Implementation Plan (4/8/02) 1344

Order Denying the Samish Tribe’s Motion to Reopen Judgment (12/19/02) 1369

Order Denying the Samish Tribe’s Motion for Reconsideration (2/7/03) 1377

Order Denying Emergency Motion for Continued Maintenance of Status Quo and for 2003 Management Plan (2/26/03) 1379

Order Denying Motion to Strike (3/13/03) 1381

Order Denying the State of Washington’s Motion for a Preliminary Injunction (4/2/03) 1382

Order on Motion for a Temporary Restraining Order (10/10/03) 1384

Order on Motion for Reconsideration (11/24/03) 1384

STIPULATION

The parties to this Stipulation agree to the arrangements herein set forth to facilitate adoption of a new Annex to the Pacific Salmon Treaty between the United States and Canada. This Stipulation and Order is entered into under the authority of Paragraph 14 of the court’s March 22,1974 permanent injunction in United States v. Washington, 384 F.Supp. 312, 416-17 (W.D.Wash.1974) (Dkt. # 508).

I. PARTIES AND DEFINITIONS

1. The parties to this Stipulation are:

The Jamestown S’Klallam Tribe

The Lower Elwha S’Klallam Tribe

The Lummi Nation

The Makah Indian Tribe

The Nooksack Indian Tribe

The Port Gamble S’Klallam Indian Tribe

The Suquamish Indian Tribe

The Swinomish Indian Tribal Community

The Tulalip Tribes

The United States of America

The State of Washington

2.A. As used herein, the term “1999 Annex” means the version of Annex IV to the Pacific Salmon Treaty that the parties to that Treaty adopted by exchange of diplomatic notes dated June 30,1999.

B. As used herein, the term “Tribes” means those Tribes signing this Stipulation and Order.

II. AGREED STATEMENTS

1. Under equitable orders entered in United States v. Washington and in Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979), the treaty Tribes party to United States v. Washington and the State of Washington are entitled to an opportunity to take up to 50% of the salmon available for harvest within Washington and closely adjacent marine waters, from runs that pass through tribal usual and accustomed fishing grounds. These salmon include sockeye that spawn in the Fraser River system in Canada and many chinook, coho, and chum stocks that originate in Washington waters.

2. On January 28, 1985, the United States and Canada entered into the Pacific Salmon Treaty, T.I.A.S. No. 11091. The United States Senate ratified the treaty on March 7,1985. The Pacific Salmon Treaty addresses the conservation and international allocation of salmon stocks that originate in one country and are subject to interception in the other. Stocks subject to the Pacific Salmon Treaty include sockeye and pink from the Fraser River and many chinook, coho, and chum stocks that originate in Washington. Article IV of the Pacific Salmon Treaty contemplates that the two countries will negotiate fishing regimes, which are attached to the Treaty as annexes and implemented through regulations adopted in the member countries Annex IV is concerned with fishing regimes adopted by the United States and Canada. Chapter 4 of Annex IV addresses Fraser River sockeye salmon.

3. Since the Pacific Salmon Treaty was executed, a number of chinook, chum, and coho stocks that originate in or migrate through Washington and that are subject to the Pacific Salmon Treaty have been listed as threatened or endangered under the Endangered Species Act. These include Puget Sound Chinook — threatened (64 Fed.Reg. 14308, 14319 (March 24, 1999)), Lower Columbia River Chinook— threatened (Id. at 14321), Upper Columbia River Spring Chinook — endangered (Id. at 14324), Upper Willamette River Chinook— threatened (Id. at 14323), Snake River Spring and Summer Chinook — threatened (57 Fed.Reg. 14653, 14661 (April 22, 1992)), Snake River Fall Chinook — threatened (Id. at 14661), Hood Canal Summer Run Chum — threatened (64 Fed.Reg. 14508, 14513 (March 25, 1999)), Oregon Coastal Coho — threatened (63 Fed.Reg. 42587 (Aug. 10, 1998)), and Ozette Lake sockeye — threatened (64 Fed.Reg. 14528, 14533 (March 25, 1999)). Puget Sound Coho and Lower Columbia River Coho salmon, which are also subject to the Pacific Salmon Treaty, are candidates for listing under the Endangered Species Act. 60 Fed.Reg. 38011, 38022, 38024 (July 25, 1995). All residents of Washington State have an interest in the conservation and recovery of these fish.

4. During the first four years of the Pacific Salmon Treaty, the United States’ share of the Fraser River sockeye harvest opportunity was approximately 26%, the Canadian share 74%. Canada has sought to increase the Canadian share of the harvest. Disagreement over the international sharing of Fraser River sockeye has been one obstacle to the negotiation of new Annexes fo the Pacific Salmon Treaty.

5. In 1999, representatives of the United States and Canada have reached agreement on a multi-year Annex to the Pacific Salmon Treaty. Chapter 4 of the 1999 Annex addresses Fraser River salmon and is intended to remain in effect for twelve years. In the 1999 Annex, the United States has agreed to reduce its harvest of Fraser River sockeye salmon. Canada has agreed to conservation-based management regimes for harvest of salmon that originate in Washington, including salmon that have been listed or are candidates for listing under the Endangered Species Act. These arrangements are an integral part of the overall package of agreements in the 1999 Annex.

6. The State of Washington recognizes that the treaty Tribes in United States v. Washington may engage in treaty fishing only at usual and accustomed grounds and stations. Fraser River sockeye pass through the usual and accustomed grounds and stations of only some of the Tribes party to United States v. Washington, Because of that, some Tribes depend on Fraser River sockeye, while other Tribes do not. The Tribes that would suffer a reduction in sockeye opportunity are not necessarily the Tribes that might eventually benefit from increased abundance of other salmon species as contemplated in the 1999 Annex.

III. ACTIONS TO BE TAKEN BY THE PARTIES

1.Under Article VI of the Pacific Salmon Treaty, the Fraser River Panel develops regulations for the harvest of sockeye and pink salmon within the Fraser Panel Area described in Annex II of the Treaty. The Fraser Panel Area generally includes U.S. and Canadian waters within the Strait of Juan de Fuca, northern Puget Sound, and the southern Strait of Georgia. Each year, the Fraser River Panel determines a Total Allowable Catch (TAC) of sockeye salmon. The 1999 Annex defines the TAC as the remaining portion of the annual aggregate Fraser River sockeye runs after deduction of spawning escapements, the Fraser River Aboriginal Exemption, and catches in test fisheries authorized by the Fraser River Panel.

2. In 1999, the overall U.S. catch in the Fraser Panel Area shall not exceed 22.4% of the TAC, of which 50% shall be made available for harvest by the Tribes, and 50% shall be made available for harvest by the State of Washington.

3. In 2000, the Washington non-treaty fisheries shall be reduced so that the U.S. catch in the Fraser Panel Area shall not exceed 20.4% of the TAC, of which 54.9% shall be made available for harvest by the Tribes, and 45.1% shall be made available for harvest by the State of Washington.

4. In 2001, the Washington non-treaty fisheries shall be further reduced so that the U.S catch in the Fraser Panel Area shall not exceed 18.4% of the TAC, of which 61% shall be made available for harvest by the Tribes, and 39% shall be made available for harvest by the State of Washington.

5. In 2002, the Washington non-treaty fisheries shall be further reduced so that the U.S. catch in the Fraser Panel Area shall not exceed 16.5% of the TAC, of which 67.7% shall be made available for harvest by the Tribes, and 32.3% shall be made available for harvest by the State of Washington.

6. Each year from 2003 through 2010, the U.S. catch in the Fraser Panel Area shall not exceed 16.5% of the TAC, of which 67.7% shall be made available for harvest by the Tribes, and 32.3% shall be made available for harvest by the State of Washington.

7. The parties recognize that the unequal distribution of harvest reductions between treaty and non-treaty fisheries may cause hardship to the non-treaty fleet. The negotiators of the 1999 Annex have proposed that the United States Congress and the Washington State Legislature appropriate at least 30 million dollars (Congress 25-30 million and the Legislature up to 5 million) over several years to purchase and retire Washington non-treaty commercial fishery licenses so as to mitigate economic hardship to the non-treaty fleet. The parties anticipate that this buyback will be accomplished over a three-year period beginning in the fall of 1999.

8. Once any portion of the funds for the purchase and retirement of commercial fishing licenses issued by Washington has been appropriated in FY 2000 as described in Paragraph III.7, the reductions in allocations to State harvests described in Paragraphs III.3 through III.6 shall be made. This Stipulation and Order shall become null and void unless some portion of the funds described in Paragraph III.7 above is appropriated in FY 2000 and the license buyback program described above is commenced. Any party to this Stipulation may invoke this paragraph by providing evidence to all other parties of the failure of the above-referenced condition and by moving the court for an order declaring this Stipulation and Order to be null and void. Should this Stipulation become null and void, the 50-50 treaty/non-treaty sharing provisions under the equitable orders described in Paragraph II.l above shall govern the treaty/non-treaty allocation of the U.S. share of sockeye salmon within the Fraser Panel Area.

9.The parties to this Stipulation agree that impacts on chinook, coho, and summer chum in Fraser Panel fisheries will continue to be considered in the North of Cape Falcon process, within the U.S. Section of the Fraser River Panel, and in other appropriate fishery management forums.

IV. EXPECTED BENEFITS

It is in the greater interests of all of the citizens of the State of Washington that a new Pacific Salmon Treaty Annex be adopted in which Canada pledges to reduce its interceptions of Washington salmon stocks listed under the Endangered Species Act (ESA), including those described in Paragraph II.3 above. Reduced interceptions in Canada and Alaska will increase the likelihood that endangered and threatened species will recover to the point that they no longer qualify for listing and harvestable numbers of fish will once again be available to the Tribes and the State. This will significantly reduce the overall economic impact of the listings on the Tribes and the State. The current listings will likely affect urban water supplies, agricultural lands, forestry, transportation facilities, the tourist industry, and the overall wealth of the State. The reduction of the State’s share of sockeye salmon as recited in the 1999 Annex will return more threatened and endangered chinook and chum salmon and candidate coho salmon, which has major value to the State and the Tribes because it may help to reduce the duration and scope of federal ESA constraints within the State.

V. IMPLEMENTATION AND MODIFICATION

1. This Stipulation shall be effective when the following three conditions are met:

A. The 1999 Annex is adopted by the United States and Canada.

B. Any hands are appropriated as referred to in Paragraphs III.7 and III.8 to mitigate economic hardship to the non-treaty fleet.

C. This Stipulation is approved by the Court and entered as a Court Order, pursuant to the Court’s continuing jurisdiction in United States v. Washington, 384 F.Supp. 312, 333, 347, 416-17 (W.D.Wash.1974).

2. Unless the parties agree on an alternative allocation, the following principles shall govern the allocation of Fraser River sockeye salmon harvest in the Fraser Panel area between the Tribes and the State of Washington after 2010:

A. If the United States and Canada have agreed on a new Annex IV Chapter 4 to the Pacific Salmon Treaty under which the United States’ share of the TAC in the Fraser Panel area remains the same as its share in 2010, the tribal/non-tribal allocation shall remain the same as the allocation agreed herein for 2010;

B. If the United States and Canada have agreed on a new Annex IV Chapter 4 of the Pacific Salmon Treaty under which the United States’ share in the Fraser Panel area is between 16.5% and 22.4% of the TAC, the tribal allocation shall be 11.2% of the TAC plus one third of the amount that the United States’ share exceeds 16.5% but is less than 22.4% of the TAC, and the remainder shall be allocated to the State of Washington;

C. If the United States and Canada have agreed on a new Annex IV Chapter 4 of the Pacific Salmon Treaty under which the United States’ share in the Fraser Panel area is 22.4% of the TAC or greater, the tribal allocation shall be as provided in subparagraph (B), above, and the remainder of the United States’ share shall be allocated to the State of Washington, provided, that at the point where the State’s allocation of the TAC equals the Tribal allocation, and above this point, the State of Washington and the Tribes shall share the harvest opportunity equally;

D. If the United States and Canada have agreed on a new Annex IV Chapter 4 of the Pacific Salmon Treaty under which the United States’ share is less than 16.5% of the TAC in the Fraser Panel area, the tribal/non-tribal allocation shall be as agreed between the State of Washington and the Tribes or, lacking such agreement, as determined by the federal court with jurisdiction in United States v. Washington;

E. In any year after 2010 for which the United States and Canada have not agreed on a new Annex IV Chapter 4 to the Pacific Salmon Treaty, the tribal/nontribal allocation of whatever share of the TAC in the Fraser Panel area the United States proposes to harvest during the impasse with Canada shall be as follows:

i. If the United States proposes to harvest 16.5% of the TAC in the Fraser Panel area, the tribal/non-tribal allocation shall remain the same as in 2010;

ii. If the United States proposes to harvest between 16.5% and 22.4% of the TAC in the Fraser Panel area, the tribal allocation shall be 11.2% of the TAC plus one third of the amount that the United States’ proposed harvest exceeds 16.5%, but is less than 22.4% of the TAC, and the remainder of the United States’ proposed harvest shall be allocated to the State of Washington;

iii. If the United States proposes to harvest 22.4% or more of the TAC in the Fraser Panel area, the tribal allocation shall be as provided in subpara-graph E(ii), above, and the remainder of the harvest proposed by the United States shall be allocated to the State of Washington, provided, that at the point where the State of Washington’s allocation of the TAC equals the tribal allocation, and above this point, the State of Washington and the Tribes shall share the harvest opportunity equally;

iv. If the United States proposes to harvest less than 16.5% of the TAC in the Fraser Panel area, the tribal/non-tribal allocation shall be as agreed between the State of Washington and the Tribes or, lacking such agreement, as determined by the federal court with jurisdiction in United States v. Washington.

3. It is further agreed that the parties shall meet not later than March 1, 2010, and enter into good faith discussions regarding the allocation of Fraser River sockeye salmon harvest between the Tribes and the State of Washington after 2010.

4. Modification of this Stipulation is to be made only in a written document signed by the parties and approved and entered by the Court as an amendment to this Stipulation.

5. Except as expressly stated herein, this Stipulation and Order does not and shall not alter the terms of any settlement agreement or Court Order entered in United States v. Washington.

6. This Stipulation and Order does not affect the power of the United States under Section 6 of the Pacific Salmon Treaty Act, 16 U.S.C. § 3635.

7. The parties’ agreement to this Stipulation is only to the extent authorized by their respective laws.

8.In the event that United States v. Washington shall be terminated, the United States District Court for the Western District of Washington shall retain such jurisdiction as is necessary to enforce the terms of this Stipulation and Order.

VI. OTHER ADMINISTRATIVE MATTERS

1. This Stipulation and Order does not alter orders governing treaty/non-treaty sharing of any fish other than sockeye within the Fraser Panel Area. This Stipulation and Order applies only to fisheries within the Fraser Panel Area.

2. The question of whether Fraser River sockeye caught in Alaska should be included in the allocation between treaty and non-treaty fishers in Washington at issue in United States v. Washington Sub-proceeding 90-1 will not be pursued for the period of time that the Fraser River sockeye chapter of the 1999 Annex is in effect, nor for any subsequent years for which the allocation between treaty and non-treaty fishers in Washington is determined under Paragraph V.2A, B, C, E(i), (ii) and (iii) above, or as agreed under Paragraph V.2D or E(iv). The parties agree that if the consolidated United States v. Washington Subproceedings 83-6 and 90-1 are reinstated on the calendar of the trial court, or the question of accounting for harvests in Alaska is raised by another party in some other proceeding, any catches of Fraser River sockeye in Alaska that occur during the time the Fraser River sockeye chapter or the 1999 Annex is in effect or during the time the allocation between treaty and non-treaty fishers in Washington is determined under said Paragraph V.2A, B, C, E(i), (ii) and (iii), or as agreed under Paragraph V.2D or E(iv), will not accrue against any state or tribal party.

3. This Stipulation and Order contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Stipulation and Order shall be deemed to exist or to bind any of the parties hereto.

ORDER

The parties having assented to the foregoing Stipulation as evidenced by the signatures of their respective Counsel, it is hereby

ORDERED, THAT THIS STIPULATION IS HEREBY ADOPTED AS AN ORDER OF THIS COURT.

ORDER DENYING PRIVATE LAND OWNERS’ MOTION FOR RECONSIDERATION AND GRANTING-IN-PART AND DENYING-IN-.PART PRIVATE LAND OWNER’S MOTION FOR AMENDMENT OF THE COURT’S CLARIFYING ORDER

Subproceeding No. 89-3

(February 25, 2000)

EDWARD RAFEEDIE, Senior District Judge.

The Court has read and considered the papers filed in connection with Intervenor-defendants Alexander, Adkins and United Property Owners of Washington, et al. (hereinafter “Private Property Owners”) unopposed Motion For Reconsideration Or, Alternatively, Motion For Amendment of the Court’s Clarifying Order, and deeming the matter fit for resolution without the need for oral argument, now reaches the following CONCLUSIONS:

[1] The Private Property Owner’s Motion For Reconsideration relies on substantially the same argument and authority that was rejected by the Court in fashioning its Order Clarifying Implementation Order Re Tribal Access Across Private Upland Property (“Clarifying Order”). The only “new” basis for the Private Property Owners’ request for reconsideration is their assertion that the Clarifying Order “fails to consider the burdens imposed upon private owners by requiring them to litigate, on a case by case basis, whether upland access in any particular case is ‘reasonable.’ ” Memorandum In Support of Reconsideration, at 4:2-4. On the contrary, the Court carefully considered the burden imposed on both the private owners and the Tribes, and determined that the Tribes’ Treaty rights required the reasonable access defined in the Court’s Clarification Order. The burden imposed on the private land owners, though regrettable, is not a sufficient basis to abrogate the Court’s previous ruling, Accordingly, the Private Property Owners’ Motion For Reconsideration is HEREBY DENIED.

[2] The Private Property Owners argue in the alternative that the Court’s Clarification Order should be amended to “reimpose a proper balance between tribal shellfish rights and private property interests.” Memorandum In Support of Reconsideration, at 6:4-5. The Private Property Owners specifically ask for three amendments to the Clarification Order. First, they seek a requirement for “the posting of a bond by the requesting Tribe in an amount sufficient to pay for any damage to privately owned upland property and the reasonable attorney fees and costs incurred by the Private Property Owners defending against requests for upland access.” Memorandum In Support of Reconsideration, at 6:7-9. The Court does not believe it has the authority to impose such a condition on Tribal access. See, e.g., United States, et al. v. State of Washington, et al., 135 F.3d 618, 641-42 (9th Cir.1998). Further, the Tribes’ sovereign immunity makes such a condition impracticable, if not impossible. Therefore, the Court rejects the Private Property Owners’ first proposed amendment.

[3] Second, the Private Property Owners request that the Court direct the Special Master “to impose the least intrusive means of access necessary to allow Tribes to enter upon tidelands to harvest shellfish.” Memorandum In Support of Reconsideration, at 6:15-17. Explicit in the Court’s original Implementation Order was the Court’s desire to impose the least intrusive burden on the Private Property Owners, a desire which is not inconsistent with the Clarifying Order. Accordingly, the Court HEREBY ORDERS that in instances where the Special Master finds that no “reasonable” access exists pursuant to section 7.2.4 and the Clarifying Order, the Special Master shall impose the least intrusive reasonable means of access necessary to allow Tribes to enter upon tidelands to harvest shellfish. “Reasonable” for purposes of this order shall be determined in the same manner as defined in the Clarifying Order, at 2-3. Further, the Special Master shall, where reasonable, give preference to existing roads and rights of way. The Court declines, however, to require that the Tribes join additional upland owners before the Special Master as requested by the Private Property Owners.

[4] Third, the Private Property Owners request that the Court direct the Tribes to “disclose all income, from all sources, and all assets of any nature, as of the preceding calendar year” for the Special Master to consider in determining whether the economic burden of accessing a particular shellfish bed is “reasonable.” Memorandum In Support of Reconsideration, at 6:22-24. The inquiry into whether an economic burden is “reasonable” does not rest on the resources of the Tribes, but rather on the actual expense required to gain access. Accordingly, the Court rejects the Private Property Owners’ request for Tribal disclosure of income.

Finally, on its own motion the Court has reviewed the Clarifying Order and finds that the following amendment is appropriate for purposes of clarity. That clause which reads “tribal members can demonstrate the reasonable absence of access by boat, public road, or public right of way,” Clarifying Order, at 2:15-16, shall be amended to read “tribal members can demonstrate the absence of reasonable access by boat, public road, or public right of way.”

For the foregoing reasons, the Private Property Owners Motion For Amendment of the Court’s Clarifying Order is DENIED-IN-PART and GRANTED-IN-PART.

IT IS SO ORDERED.

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

CONSENT DECREE

Subproceeding No. 00-1

(August 18, 2000)

BARBARA J. ROTHSTEIN, District Judge.

On a motion for a temporary restraining order brought by the Skokomish Indian Tribe, the Court held a hearing with the following parties present and represented by counsel: the Skokomish Indian Tribe, represented by Richard Guest; the Port Gamble S’Klallam Tribe, the Jamestown S’Klallam Tribe, and the Lower Elwha Tribal Community of the Lower Elwha Reservation (Lower Elwha Klallam Tribe); represented by Vernle C. Durocher, Jr.; and the Suquamish Indian Tribe, represented by Michelle Hansen. Following argument, the Court adjourned to chambers to discuss with counsel issues related to tribal management and treaty allocation (as defined in U.S. v. Washington) of the Dungeness crab fishery in Hood Canal.

The parties have reached agreement as follows:

1. On August 17, 2000, during the Court’s hearing, the Point No Point Treaty Council filed Regulation # S2000-124/Modified, closing the Dungeness crab fishery in Hood Canal effective Sunday, August 20, 2000 at 6:00 p.m. The parties agree that, under these circumstances, the relief requested by the Skokomish Indian Tribe and Court intervention is unnecessary.

2. The parties shall actively pursue mediation and shall notify the Court as to the selection of a mediator acceptable to all parties within seven days of the date of entry of this order. The scope of the mediation shall include the tribal management and treaty allocation (as defined in U.S. v. Washington) of the Dungeness crab fishery in Hood Canal for the 2000/2001 season ending April 15, 2001.

3. If the parties cannot mutually agree upon a mediator, the Skokomish Tribe, the Suquamish Tribe, and the legal counsel for the Port Gamble S’Klallam Tribe, the Jamestown S’Klallam. Tribe, and Lower Elwha Klallam Tribe (collectively), shall each, within three days following the expiration of the seven day interval referenced above, submit three names of mediators to the Court and the Court will select a mediator for the parties,

4.Costs of mediation shall be born equally by the parties.

IT IS SO ORDERED and decreed.

ORDER ESTABLISHING INTERIM HALIBUT FISHERY MANAGEMENT PLAN

Subproceeding 91-1

(March 20, 2001)

THIS MATTER comes before the court on three motions filed by various tribes that participate in Washington’s treaty halibut fishery. Each motion seeks entry of an order adopting an interim fishery management plan (“FMP”) for the year 2001 commercial halibut fishery. The court has received pleadings filed on behalf of the Makah, Quileute and Quinault tribes (the “Coastal Tribes”), the seven “Inside Tribes” (comprised of the Lower Elwha S’Klallam, Port Gamble S’Klallam, Jamestown S’Klallam, Tulalip, Swinomish, Su-quamish and Skokomish tribes), and the Lummi Nation. Having reviewed these pleadings, along with the relevant portions of the record, and being fully advised, the court finds and rules as follows:

I. BACKGROUND

Pursuant to their inherent management authority, all tribes involved in this halibut fishery have historically adopted FMPs based on negotiated agreement. These FMPs establish fishery opening dates, quotas for different phases of the fishery, catch limits, in season adjustment mechanisms, and dispute resolution procedures. The year 2000 FMP for the commercial fishery was agreed to by eleven of the twelve interested tribes (except the Qui-leute, which eventually consented to the 2000 FMP as an interim management measure), and appears to have resulted in an orderly, and generally successful, fishing season. The total allowable catch (“TAC”) for the treaty fishery in 2000 was 305,500 pounds. This TAC was pursued during three “sub-fisheries” during the season. The first sub-fishery was a 48 hour “unrestricted opening,” which imposed no limitations on catch vessels. The second sub-fishery was a 30 day “restricted opening,” during which each vessel was subject to a 500 pound daily landing limit. The third sub-fishery was a variable “mop-up” period after the 30 day restricted opening, designed to capture any allowable catch remaining after the unrestricted and restricted openings.

Because the various participating tribes’ usual and accustomed fishing grounds are at diverse locations, and because the fishers’ habits and capabilities vary, they have their greatest interest in different sub-fishery phases. The Makah, for example, claim that they rely most heavily on the first unrestricted opening because they are capable of landing a large volume of fish and because the commercial price for halibut is highest early in the season. The Inside Tribes, because of their geographic location and the distribution of halibut through their fishing grounds, place more importance on the 30 day restricted opening of the fishery. Finally, tribes like the Quileute, who tend to fish later in the spring as the weather changes, are more interested than others in the late season mop-up sub-fishery. Late season fishers are also concerned that a high catch rate in the early sub-fisheries can effectively erase the opportunity for late season fishing if the TAC is met or exceeded too soon. The relative importance each tribe places on a particular stage of the halibut fishery has resulted in a divergence of opinion and, thus far, an inability to agree on a FMP for 2001.

Moreover, the year 2001 fishery is projected to be even stronger than previous years, with a calculated TAC of 406,500 pounds of fish. This 33% increase in stock abundance has spawned additional disputes among the tribes regarding how the TAC should be allocated among them, if at all. Recognizing the need for a FMP to direct the 2001 halibut fishery, even in the absence of complete tribal agreement, the tribes have approached the court with proposed interim management plans to see them through until an acceptable long term FMP can be agreed upon. Although the overall structure of the FMP sought is not in dispute, the details of the parties’ proposals differ significantly. In relevant part, the Coastal Tribes propose: 1) an initial 60 hour unrestricted opening with a catch target of 220,000 pounds; 2) additional openings thereafter, beginning on March 22, 2001, designed to bring the total harvest up to 325,200 pounds (80% of the TAC); 3) a 30 day restricted fishery designed to harvest the remaining 81,300 pounds of halibut (20% of the TAC); and 4) additional openings after April 15, 2001, during which any unharvested portion of the TAC may be taken. In addition, the Coastal Tribes’ proposal imposes gear limitations not present in previous years, based on their belief that all tribes should “play by the same rules.”

The Inside Tribes object to the Coastal Tribes’ proposal on three primary grounds: 1) the Coastal Tribes’ proposal imposes gear restrictions on halibut fishers that would disadvantage the Inside Tribes’ fishing effort; 2) the unrestricted openings are not conservatively designed to guarantee the viability of later restricted openings; and 3) there are insufficient equitable measures provided to adjust for over harvest of halibut during the unrestricted sub-fishery. Essentially, the Inside Tribes maintain that the Coastal Tribes’ proposed management plan does nothing to protect the former’s opportunity to participate in this fishery. Therefore, the Inside Tribes have asked the court to “maintain the status quo” by adopting a 2001 FMP that is equivalent to the 2000 FMP and adjusted to reflect this year’s increased TAC. Thus, the parties agree that the court must put into place an FMP for the 2001 halibut fishery, and differ only on the terms of that FMP.

II. DISCUSSION

The court has retained jurisdiction to consider tribal treaty fishing issues in proceedings ancillary to Judge Boldt’s landmark decision in United States v. Washington, C70-9213, and the instant parties have consented to the authority of this court to enter an order adopting an FMP for the 2001 halibut fishery. In assessing the various proposals submitted by the parties, the court has focused on two principles. First, the court is obligated to direct management of the fishery in such a way as to preserve and maximize each tribe’s treaty right to take fish. See generally United States v. Washington, 626 F.Supp. 1405 (W.D.Wash.1985). In addition, the court will respect to the greatest extent possible the tribes’ collective authority and ability to manage their fisheries themselves, by mutual agreement.

Turning first to the Coastal Tribes’ proposed management plan, the court notes that strenuous objections have been filed by other interested tribes. There is shared concern over whether the Coastal Tribes’ proposal would adequately protect tribal fishers’ opportunity to harvest halibut in the later stages of the fishery, and whether the proposed plan provides an effective mechanism to compensate tribes adversely effected by an excessive early harvest. Further, the gear limitations proposed by the Coastal Tribes represent an entirely new element that has not been agreed to in the past.

The Inside Tribes’ proposed FMP, by contrast, is merely a reiteration of the FMP which was formally agreed to by eleven of the twelve interested tribes, which had the eventual consent of the twelfth, and which proved to be a satisfactory arrangement overall. That proposed FMP retains all the structural, organizational and reporting provisions of the 2000 FMP, and simply changes the numerical values affected by this year’s increased TAC.

Given the totality of the circumstances present in this case, the court finds that the best, and most equitable, course of action is to continue managing the halibut fishery in essentially the same manner as applied during 2000. The court cannot, on the limited record presently before it, adopt alterations to the established regime as extensive as those proposed by the Coastal tribes without obtaining additional information. To determine whether the gear limitations suggested by the Coastal Tribes are necessary and fair, or whether their proposed openings allow for adequate late season catch for other tribes, would require a more thorough trial of the issues and presentation of substantial expert opinion and evidence than is possible at this juncture. The court, therefore, adopts the 2001 Tribal Commercial Halibut Fishery Management Plan as proposed by the Inside Tribes. See 2001 Tribal Commercial Halibut Fishery Management Plan, Exh. B to “Certain Tribes” Motion to Adopt an Interim Halibut Commercial Fishery Plan.

III. CONCLUSION

For the reasons discussed above, the court finds that the 2001 halibut fishery shall be subject to the management plan agreed to by the parties for the year 2000 fishery, with numerical catch values adjusted upwards in light of the increase in this year’s total allowable catch. The plan adopted by the court is that proposed by the seven Inside Tribes in their motion for order adopting interim management plan, and that motion [docket 59-1] is, consequently, GRANTED. The Coastal Tribes’ motion for adoption of their proposed 2001 management plan [docket 52-1] is DENIED.

PROPOSED ORDER RE AMENDMENT TO PARAGRAPH G OF ORDER FOR PROGRAM TO IMPLEMENT INTERIM PLAN

Subproceeding No. 96-2

(May 08, 2001)

After examination of the stipulation of the parties that Paragraph G of the Order For Program To Implement Interim Plan, 459 F.Supp. 1020, 1037-38, should be amended, the Court finds that the amendment represents a fair and equitable settlement of the dispute as to that portion of this subproceeding. This Order is intended to affect only Paragraph G of the Order For Program To Implement Interim Plan, leaving the other provisions of the Order, as previously modified, unchanged.

ORDER

Paragraph G of the Order For Program To Implement Interim Plan, 459 F.Supp. 1020, 1037-38, is amended to read as follows:

1. Any Tribe party to this case may open a fishery within that Tribe’s previously adjudicated usual and accustomed grounds and stations for any species of fish, including non-anadro-mous fish. Before opening any fishery, the parties shall comply with applicable court orders. If any tribal or state fishery would reasonably be expected to affect another party’s fisheries, the party conducting the fishery:

a. Shall comply with the Stipulation and Order Concerning Co-Management and Mass Marking, entered in United States v. Washington Subproceeding 96-3 on April 28, 1997; and

b. Shall provide data on catch and biological information concerning the fishery to any party who requests it.

2. Upon request, the biologists for the State and biologists for the Tribes shall meet to formulate general principles to be utilized as guidelines to be flexibly applied in the adoption of specific fishing regulations applicable to particular species of non-anadromous fish.

3. Any of the parties may invoke the continuing jurisdiction of this court in order to determine the procedures and/or method for adopting management principles with respect to any particular species of non-anadromous fish. The parties shall comply with the procedures of the Order Modifying Paragraph 25 of Permanent Injunction, entered in United States v. Washington on August 23,1993.

4. Paragraphs G.l and G.2 do not apply to fisheries in the United States’ Exclusive Economic Zone that are subject to a federal fishery management plan adopted under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C, 1801-1883, or that are governed by federal regulations adopted under that Act or other applicable federal law.

DONE IN OPEN COURT this 4th day of May, 2001.

ORDER GRANTING UNITED STATES’ AND DENYING WASHINGTON’S MOTIONS FOR JUDGMENT

Subproceeding No. 01-1 (Culverts)

(September 06, 2001)

THIS MATTER comes before the court on two related motions. The United States has filed a motion to strike, or for judgment on, fifteen of the twenty affirmative defenses asserted in the State of Washington’s Answer to the Plaintiff Tribes’ Request for Determination (“RFD”) and to the United States’ Response to the RFD. Washington has also filed what is essentially a cross-motion, seeking judgment on the pleadings regarding the “law of the case” in which it contends that the relief sought in the Tribes’ RFD is barred by prior judicial decisions. Having now reviewed the pleadings filed in support of and in opposition to these motions, together with the relevant portions of the record, and being fully advised, the court finds and rules as follows:

I. DISCUSSION

A. Washington’s Affirmative Defenses

1. Waiver and Estoppel

The affirmative defenses laid out in paragraphs 6.1 through 6.8 of Washington’s answer are based on the doctrines of waiver or estoppel. Washington believes that the United States’ conduct in funding and approving Washington’s roadway culverts prevents it from now asserting a claim that those culverts violate the plaintiff Tribes’ treaty rights. The United States argues that neither waiver nor es-toppel are tenable defenses when the United States is acting to enforce the rights of Indian tribes.

The United States has correctly identified the binding authority that forecloses Washington’s attempt to use waiver or estoppel defenses in this case. See, e.g., Cramer v. United States, 261 U.S. 219, 43 S.Ct. 342, 67 L.Ed. 622 (1923) (acts of government agent do not bind government and cannot constitute waiver of Indian rights); Pine River Logging & Improvement Co. v. United States, 186 U.S. 279, 22 S.Ct. 920, 46 L.Ed. 1164 (1902) (same); United States v. Washington, 157 F.3d 630 (9th Cir.1998) (estoppel defense cannot be asserted to defeat claims enforcing Indian rights); Swim v. Bergland, 696 F.2d 712 (9th Cir.1983) (same); United States v. Ahtanum Irrigation Dist., 236 F.2d 321 (9th Cir.1956) (same). Washington has not presented any on-point authority to the contrary, and its argument in opposition to the United States’ motion fails to controvert the clear legal principles laid out in the cases cited above. Because the defenses of waiver and estoppel are simply not available to defeat the United States’ instant action to enforce the plaintiff Tribes’ treaty rights, the government is entitled to judgment as a matter of law on the affirmative defenses asserted in paragraphs 6.1 through 6.8 of Washington’s answer.

2. Constitutional Defenses

The United States argues that Washington’s constitutional defenses, asserted under the Equal Footing Clause, the Guarantee Clause, and the Tenth Amendment to the United States Constitution, are legally insufficient under the instant circumstances. Washington responds that the treaty right asserted in this case may not be consistent with its admission as a state into the federal union, that it may violate the Guarantee Clause’s promise of a republican government, and that it impinges on rights reserved to the states under the Tenth Amendment. Washington further argues that these defenses present questions that deserve further development and attention during this litigation and which preclude summary dismissal.

The court disagrees. As Washington admits, the Equal Footing doctrine has been rejected as a basis for limiting Indian tribes’ treaty fishing rights for a century or more. E.g. United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). Indeed, these very parties were reminded that Washington’s admission “into the Union upon an equal footing with the original states had no effect upon the treaty rights of the Plaintiff tribes.” United States v. Washington, 157 F.3d 630, 646 (9th Cir.1998) (quoting Final Decision No. 1, 384 F.Supp. 312, 401 (W-D.Wash.1974)). Washington responds that the relief sought in this subproceeding is based not on express treaty rights, but instead on an implied right to habitat conservation, and is thus not subject to the rule last stated. However, that contention rests on a faulty and improper formulation of the plaintiff Tribes’ claim. The Tribes and the United States have asked the court to declare that Washington has a duty to manage its culverts in a certain manner so as to guarantee or protect their treaty right to take fish. Whether such a duty exists, and the measure of any such duty, has yet to be determined. What is abundantly clear at this time, however, is that the Tribes are asserting a treaty right, and that right is unaffected by Washington’s admission into the union, such that the Equal Footing affirmative defense (paragraph 6.12 of Washington’s answer) must fail as a matter of law.

The same is true for Washington’s Guarantee Clause defense (paragraph 6.17 of Washington’s answer). Washington’s claim that the Tribes seek to dictate how the state legislature shall act and to control the expenditure of state funds is simply unfounded and contrary to the plain language of the RFD. Moreover, to the extent that Washington will be forced to act in a particular manner in order to comply with its treaty obligations, that compelled action is no constitutional infringement given the fact that treaties with Indian tribes are expressly part of the “Supreme Law of Land” governing all states. See U.S. Const. Art. VI (containing the “Supremacy Clause”); Missouri v. Holland, 252 U.S. 416, 432, 40 S.Ct. 382, 64 L.Ed. 641 (1920). The Guarantee Clause is thus no bar to the relief sought in the plaintiffs’ RFD.

Washington’s defense under the Tenth Amendment (paragraph 6.18 of Washington’s answer) can fare no better. The Amendment protects state sovereignty and the federalist structure of our national government, but Washington has nowhere identified any threat to its reserved powers. Again, by operation of the Supremacy Clause, Indian treaties are incorporated into the body of paramount law binding both state and federal governments. There can be no valid Tenth Amendment defense when the United States seeks to enforce an obligation under one of these universally binding legal positions. Id. See also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999).

3. Political Question Doctrine

The United States correctly notes that Washington’s political question affirmative defense, asserted in paragraph 6.13 of its answer, cannot be sustained where the case does not implicate the relationship between the coordinate branches of the federal government. See Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (holding that political question doctrine is implicated in “the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States”). Apparently conceding this point, Washington argues that a political question is raised because the Tribes have presented claims for which no judicially determinable standards for decision exist. Washington relies primarily on the procedural history of the former “Phase II” of this litigation in support of this argument.

However, Washington overstates the significance of the prior holdings in Phase II. Although the Ninth Circuit Court of Appeals vacated this court’s order with respect to the Tribes’ right to prevent environmental degradation, it left open the possibility that such a right exists and left for future tribunals the question of how to measure that right. See United States v. Washington, 759 F.2d 1353, 1357 (9th Cir.1985). There is simply no support in the record or case law for the proposition that this court is ill-equipped to determine the appropriate legal standards for deciding the issues presented herein. Under these circumstances, Washington’s political question affirmative defense lacks any merit.

A Self-execution of Treaties

Washington alleges in paragraph 6.14 of its answer that the Stevens treaties at issue in this case are not self-executing and thus not binding on the State absent Congressional ratification. This position has been repeatedly rejected, including by the Supreme Court in closely-related litigation. See Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 693, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). Nevertheless, Washington seeks to save this affirmative defense by claiming that the particular rights asserted in this subproceeding are only implied by self-executing rights, and are not themselves self-executing. Yet this argument is based on the flawed characterization of the Tribes’ claims heretofore rejected by the court. See supra, § I.A.2. Because the Tribes are seeking to measure and enforce their right to take fish, which right is indisputably self-executing, Passenger Fishing Vessel, 443 U.S. at 693, 99 S.Ct. 3055, this affirmative defense is legally unavailing.

5. Washington’s Compliance With the Endangered Species Act

Washington describes its Endangered Species Act (“ESA”) compliance affirmative defense as an assertion that “any alleged treaty habitat obligation affecting the State’s construction and maintenance of culverts is subsumed by Washington’s ESA compliance because the United States has expressly said so.” Washington’s Opposition to the United States’ Motion to Strike at 15. It cites nothing in support of this proposition.

Moreover, Washington’s position defies logic. Washington’s compliance with the ESA in particular actions or projects does not necessarily satisfy its treaty obligations any more than satisfying its treaty obligations would suffice for compliance with the ESA. The duties imposed by each originate with different legal sources, and are measured by different legal standards. That being so, Washington’s ESA affirmative defense essentially reduces to another variation on the waiver and estoppel argument, namely that it has complied with the Stevens treaties “because the United States said so,” summarily rejected above. However it is framed, the court concludes that this affirmative defense, set forth in paragraph 6.15 of Washington’s answer, cannot survive the United States’ motion to strike.

B. Washington’s Motion for Judgment on the Pleadings

Washington’s Motion for Judgment on the Pleadings Re: Law of the Case seeks judgment as a matter of law that the relief requested by the plaintiff Tribes, and the United States on their behalf, in this subproceeding is barred by the preclusive effect of prior legal determinations, and asks that the litigation be terminated on that basis. Specifically, Washington argues that the Tribes are not, as a matter of law, guaranteed a treaty right to “earn a moderate living” from their treaty fishery because numerous courts have already rejected that contention, citing Washington Passenger Fishing Vessel, 443 U.S. 658, 99 S.Ct. 3055, and the United States v. Washington complex of cases. Both the Tribes and the United States have filed memoranda opposing this motion, in which they argue that Washington has mischaracterized the nature of the remedy they seek and has misread the holdings on which Washington’s argument relies. The United States asks the court to strike this “law of the case” theory as an affirmative defense, which is set out in paragraph 6.11 of Washington’s answer.

Having closely reviewed the applicable pleadings, the court rejects Washington’s formulation of the relief plaintiffs seek in this matter. Washington’s motion proceeds, at the outset, on a faulty premise by suggesting that the Tribes are suing to enforce their right to earn a moderate living. This mischaracterization oversimplifies the remedies sought in the Request for Determination, and unfairly casts it in terms that may facially conflict with prior judicial decisions. Instead, it is clear to the court that the plaintiffs are seeking to prevent the state from interfering with the treaty right of taking fish by affirmatively diminishing the number of fish available for harvest.

Furthermore, the court does not read the cases Washington relies on in the manner which Washington suggests, and rejects the claim that those decisions preclude litigation of the Tribes’ instant attempt to ensure that Washington does not build and manage its roadway culverts in a fashion that impermissibly blocks the passage of fish destined for the Tribes’ usual and accustomed fishing grounds. For example, the Ninth Circuit Court of Appeals, in dismissing the Phase II litigation, explicitly recognized that the “State of Washington is bound by the treaty. If the State acts for the primary purpose or object of affecting or regulating the fish supply or catch in noncompliance with the treaty as interpreted by past decisions, it will be subject to immediate correction and remedial action by the courts. In other instances [when the state does not act with the primary purpose of regulating fish supply], the measure of the State’s obligation [to avoid environmental degradation] will depend for its precise legal formulation on all of the facts presented by a particular dispute.” United States v. Washington, supra, 759 F.2d at 1357. Nothing in the Passenger Fishing Vessel decision conflicts with this recognition that Washington’s duty with respect to the environment, imposed by the treaty, is a realistic possibility.

Whether the Tribes have a treaty-based right to insist on the remedies they seek from the State remains to be determined. But nothing in prior decisions precludes this court from considering the issues raised in the RFD. Because the instant litigation is not controlled or foreclosed by prior rulings, Washington’s law of the case affirmative defense fails as a matter of law.

II. CONCLUSION

For the reasons detailed above, the court finds that fifteen of Washington’s affirmative defenses are insufficient as a matter of law. The United States’ motion to strike, or in the alternative to grant judgment on, those affirmative defenses is GRANTED and the affirmative defenses are hereby STRICKEN from Washington’s answer. The court also concludes that Washington’s motion for judgment on the pleadings is without merit, and that motion is hereby DENIED.

ORDER GRANTING UNITED STATES’ MOTION FOR RECONSIDERATION AND MOTION TO DISMISS STATE’S CROSS-REQUEST FOR DETERMINATION

Sub-proceeding No. 01-1 (Culverts)

(October 26, 2001)

THIS MATTER comes before the court on the United States’ Motion to Reconsider Court’s Order Denying Motion to Dismiss. The United States requests that the court reconsider its ruling denying the United States’ motion to dismiss Washington’s cross-request for determination. On September 5, 2001, the court called for responsive briefs, asking the parties to address the issues raised in the United States’ motion for reconsideration. Upon closer inspection, more thorough briefing, and further development of this issue, the court finds and rules as follows:

I. BACKGROUND

On January 12, 2001, the United States initiated this action, together with interested Indian tribes, to force Washington to repair and better maintain its roadway culverts so that such culverts would not impair, but would indeed promote, fish runs. On March 15, 2001, Washington filed its “Answer and Cross and Counter Requests for Determination” in which it asserts a claim against the United States for injunctive and declaratory relief. Washington claims that the United States has “unlawfully injured the State of Washington by ... placing on the State a disproportionate burden to meet any such treat-based duty” and has “managed its lands in such a way as to create a nuisance that unfairly burdens the State of Washington.” State’s Answer 31 ¶¶ 7.4, 7.5. On July 20, 2001, this court issued an order denying the United States’ motion to dismiss Washington’s cross-request for determination. The United States argues, in both its previously filed motion to dismiss and now in its motion to reconsider, that Washington’s cross and counter request is improper because (1) the court lacks jurisdiction over Washington’s cross-request because of the doctrine of sovereign immunity; and (2) Washington lacks standing to assert claims on behalf of the Indian Tribes.

The United States believes that the court may have “misapprehended or overlooked” its arguments concerning sovereign immunity and standing. Specifically, the United States believes that the court may have erroneously perceived those arguments as being dependent on the United State’s alignment as a party in this action.

II. DISCUSSION

The court will ordinarily deny motions for reconsideration in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence. See Local Rule CR 7(e).

1. Sovereign Immunity

Congress alone has the authority to determine whether and under what circumstances to waive the immunity of the United States. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Consent to suit cannot be provided by a court or by government officers. United States v. United States Fid. & Guar. Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940). Waivers of sovereign immunity are construed strictly and narrowly. United States v. Nordic Vill., Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). The party who “sues the United States bears the burden of pointing to ... an unequivocal waiver of immunity.” Prescott v. United States, 973 F.2d 696, 701 (9th Cir.1992). Moreover, “[t]he United States does not waive sovereign immunity by implication; any waiver must be unequivocally expressed.” Metro. Water Dist. of S. Cal. v. United States, 830 F.2d 139, 142 (9th Cir.1987). The fact that the United States is a plaintiff in this action does not, by itself, waive its sovereign immunity. See id. at 143 (“[MJerely by instituting a suit, the United States does not consent to be sued on a counterclaim based on a cause of action for which it has not otherwise given its consent to be sued.”). Indeed, “[t]he United States does not waive its sovereign immunity by instituting the action in which a defendant asserts a claim for affirmative relief against the United States.” United States v. City of Los Angeles, 595 F.2d 1386, 1389 (9th Cir.1979) (emphasis added).

The institution of an action by the United States may, however, constitute a limited waiver of sovereign immunity with respect to certain counterclaims that may be asserted by the defendant, even absent a statutory waiver of immunity. When the United States institutes an action, it waives immunity as to the counterclaims of the defendant which assert matters in recoupment — matters that arise out of the same transaction or occurrence which is the subject matter of the government’s action. Such waivers are limited to the extent of reducing or defeating the government’s claim. See Frederick v. United States, 386 F.2d 481, 488 (5th Cir.1967). A judgment which is affirmative in the sense of involving relief different in kind or nature or exceeding the amount of the government’s claim is not authorized. Id.; United States v. Agnew, 423 F.2d 513, 514 (9th Cir.1970) (“[A] counter-claim may be asserted against a sovereign by way of set off or recoupment to defeat or diminish the sovereign’s recovery, [though] no affirmative relief may be given against a sovereign in the absence of consent.”).

In its Answer and Cross and Counter Requests for Determination, the State contends that the United States has “unlawfully injured the State of Washington by, among other things, placing on the State a disproportionate burden to meet any such treaty-based duty” and has “managed its lands in such a way as to create a nuisance that unfairly burdens the State of Washington.” Answer ¶¶ 7.4, 7.5. The State also claims that federal agencies operate culverts that may block fish passage. These federal actions, the State argues, by decreasing the fish supply, have increased the State’s burden to provide the Tribe’s with a “moderate living.” The State therefore asks the court to declare the alleged federal agency actions to be contrary to the treaty right, if such a right exists, and to compel the federal agencies to inventory and fix their own culverts. State’s Answer ¶¶ 8.5-8.7, 8.9-8.11. The United States rightly points out that Washington “does not merely claim that its own liability should be reduced to account for alleged conduct by the United States, but seeks affirmative relief against the United States.” Mem. In Supp. of United States’ Mot. to Recons. Court’s Order Denying Mot. to Dismiss at 3.

Since Washington’s claim requests affirmative relief against the United States, this counter request cannot fall within the judicial exception permitting counterclaims for recoupment against the United States. Fidelity & Guaranty Co., 309 U.S. at 511, 60 S.Ct. 653. While it seems that the essence of the State’s request is that its own liability should be reduced because of alleged federal actions, its claim is in the form of i