United States v. Washington (20 F. Supp. 3d 828, 2007)

TABLE OF CONTENTS

ORDER PAGE

Minute Order (1/3/07) 831

Order on Motions for Summary Judgment (1/3/07) 831

Order on Motion for Reconsideration (1/17/07) 841

Stipulation of Plaintiffs and State of Washington regarding Scope of Subproeeeding, and Order (1/29/07) 845

Joint Motion for Order and Consent Decree Approving Settlement Agreement (6/20/07) Order and Consent Decree Approving Settlement Agreement (6/21/07) 845

Joint Motion for Order Approving Consent Decree and Settlement Agreement (6/29/07) 874

Joint Motion for Order Approving Consent Decree and Settlement Agreement re Manila Clams, Native Littleneck Clams and Pacific Oysters (6/29/07) 881

Order Approving Consent Decree and Settlement Agreement (7/11/07) 889

Order Approving Consent Decree and Settelement Agreement re Manila Clams, Native Littleneck Clams and Pacific Oysters (7/11/07) 889

Order on Cross-Motion for Summary Judgment (8/22/07) 889

COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 2007)

MINUTE ORDER

Subproceeding 05-02

(January 3, 2007)

RICARDO S. MARTINEZ, District Judge.

The following Minute Order is made by direction of the Court, the Honorable Ricardo S. Martinez, United States District Judge:

The motion for reconsideration filed by the Lummi Nation and Swinomish Indian Tribal Community (Dkt. # 96) is GRANTED. The Court hereby amends the language of the Court’s Order dated November 21, 2006, to read as follows:

The Lower Elwha argued, in opposition to dismissal, that a race fishery in Hood Canal would result in destruction of the resource through a “tragedy of the commons.” This cannot occur, however, because the total harvest of each stock is subject to conservation regulation. See, inter alia, Stipulation and Order Adopting Shellfish Implementation Plan, Dkt. # 17340; Order Adopting Puget Sound Salmon Management Plan, Dkt. # 10180; U.S. v. Washington, 384 F.Supp. 312, 402 (W.D.Wash.1974); Puyallup Tribe v. Department of Game, 433 U.S. 165, 177, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977).

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

Subproceeding No. 05-3

(January 3, 2007)

This subproceeding was initiated as a Request for Determination (“Request”) filed by the Upper Skagit Indian Tribe (“Upper Skagit”), asking the Court to determine that certain areas known as Sara-toga Passage and Skagit Bay, on the eastern side of Whidbey Island, are not within the usual and accustomed fishing area (“U & A”) of the Suquamish Indian Tribe (“Su-quamish”) as it was defined in U.S. v. Washington, 459 F.Supp. 1020 (1978). A Cross-Request for Determination was filed, with leave of Court, by the Swinomish Indian Tribal Community (“Swinomish”), essentially joining in the Request of the Upper Skagit. The Suquamish filed an Answer opposing both Requests. The matter is now before the Court for consideration of summary judgment motions filed by the three parties. Oral argument was heard on December 12, 2006, and the arguments and memoranda of the parties, and other Tribes who appeared as interested parties, have been fully considered. As the three motions argue the same points and issues, they shall be discussed together.

BACKGROUND

In 1975, in the language that lies at the heart of this dispute, U.S. District Court Judge George Boldt described the U & A of the Suquamish as

the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal.

Finding of Fact # 5 (“FF 5”), U.S. v. Washington, 459 F.Supp. 1020, 1049 (1978). The Upper Skagit and Swinomish assert in their separate Requests for Determination that this language is ambiguous as to certain waters lying on the eastern side of Whidbey Island, known as Saratoga Passage and Skagit Bay. They ask for a determination that the Suquamish U & A do'es not include these areas. The Suquamish, in answering the Request, contend that this language is not ambiguous, and that it unambiguously includes the contested areas.

The Court has ruled previously that there is sufficient ambiguity surrounding Judge Boldt’s use of the term “Puget Sound” in describing the Suquamish U & A to require clarification, thus allowing this subproceeding to go forward. Dkt. # 43, pp. 2-3; Dkt. # 71, n. 2. In a later Order, the Court set out a two-step procedure for reaching an understanding of Judge Boldt’s intent. Referring to prior decisions of the Ninth Circuit Court of Appeals known as Muckleshoot I (Muckleshoot Indian Tribe, et al. v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir.1998)), Muckleshoot II (Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9th Cir.2000)), and Muckleshoot III (Puyallup Indian Tribe, et al. v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir.2000)), the Court stated,

These rulings inform this Court’s decision on the motion to compel, as they define the scope of discovery in this matter. The burden in this subproceed-ing is on the requesting parties — the Upper Skagit and the Swinomish Tribal Community — to offer evidence that FF 5 is ambiguous, or that Judge Boldt “intended something other than its apparent meaning.” Id. [citing to Muckleshoot I, 141 F.3d at 1359.] Since the apparent meaning of the phrase “the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits....” is in dispute here, it must be determined by the Court. The relevant evidence on this issue is evidence which indicates the contemporary understanding of the extent of “the marine waters of Puget Sound ... ”, which will “shed light on the understanding that Judge Boldt had of the geography at the time.” Muckleshoot I, 141 F.3d at 1360; Muckleshoot II, 234 F.3d at 1100. This may be provided by supplementation of the record, at the appropriate time, with declarations of geography experts. Id. Such evidence may be offered by the parties to “enable the district court to interpret the decree in specific geographic terms.” Muckleshoot I, 141 F.3d at 1360.

Should the evidence show that the common understanding of the term “Puget Sound” in 1974 included Saratoga Passage and Skagit Bay, the Upper Skagit or Swinomish Tribe must produce evidence that suggests that Judge Boldt intended something other than this apparent meaning when he wrote FF 5. Muckleshoot I, 141 F.3d at 1359. The evidence that is relevant to Judge Boldt’s intent comprises “the entire record before the issuing court and the findings of fact [which] may be referenced in determining what was decided.” Muckleshoot I, 141 F.3d at 1359.

Dkt. # 71 (emphasis added).

ANALYSIS

A. Ambiguity and Apparent Meaning

The first step, as set forth above, is to determine whether Judge Boldt’s language is actually ambiguous. The Skagit and Swinomish assert that it is; the Suquamish contend that it is not. The Skagit and Swinomish counter that Suquamish should be estopped from asserting unambiguity, hecause they have in the past, in other subproceedings, argued that the term is ambiguous.

As the Court has stated previously, it is not the meaning of “Puget Sound” that is at issue here, but rather its use by Judge Boldt in describing that portion of Puget Sound that constitutes the Suquamish U & A. That is, the term must be viewed in context: “the marine waters of Puget Sound from the tip of Vashon Island to the mouth of the Fraser River.”

Black’s Dictionary defines “ambiguity” as:

Doubtfulness; doubleness of meaning. Duplicity, indistinctness, or uncertainty of meaning of an expression used in a written instrument. Want of clearness or definiteness; difficult to comprehend or distinguish; of doubtful import.

Ambiguity of language is to be distinguished from unintelligibility and inaccuracy, for words cannot be said to be ambiguous unless their signification seems doubtful and uncertain to persons of competent skill and knowledge to understand them.

It is latent where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings, as where a description apparently plain and unambiguous is shown to fit different pieces of property. A patent ambiguity is that which appears on the face of the instrument, and arises from the defective, obscure, or insensible language used.

Black s Law Dictionary, 5th ed., abridged, p. 41.

The Upper Skagit and Swinomish assert that the Court has already determined that Judge Boldt’s language in describing the Suquamish U & A is ambiguous, and that such determination is the law of the case. However, the Court’s previous ruling was not that the language was ambiguous, but rather that there was sufficient ambiguity “surrounding” Judge Boldt’s language to justify clarification. While a latent ambiguity may have arisen later from various judges’, and parties’ imprecise use or differing understanding of the term “Puget Sound”, it is the possible ambiguity in Judge Boldt’s use of the term in 1975 that is at issue here.

In support of their contention that the language is not ambiguous, the Suquamish point to various places in the record where “Puget Sound” was actually defined by the Court. Specifically, Judge Boldt expressly adopted the definition of Puget Sound set forth in the “Joint Statement Regarding the Biology, Status, Management, and Harvest of the Salmon and Steelhead Resources of the Puget Sound and Olympic Peninsula Drainage Area of Western Washington”, Exhibit JX-2a from the original U.S. v. Washington proceedings. That definition states: “As used in this report (except where the context clearly indicates otherwise) the term ‘Puget Sound’ includes the Strait of Juan de Fuca and all saltwater areas inland therefrom, ...” Ex. JX-2a, p. i. (emphasis added). Judge Boldt expressly adopted this definition in his Findings of Fact in Washington I. Referring to the facts set forth in the report, he stated, “The contents of said report are hereby incorporated by reference as Findings of Fact herein.” Washington I, 384 F.Supp. 312, 338 (W.D.Wash.1974). This became Finding of Fact 164. Id. The contents of the report necessarily include the definitions.

The Skagit and Swinomish attempt to minimize the significance of this report by characterizing it as simply a fisheries management tool. However, this case arose out of fisheries management in Washington State, and tribal participation therein. Judge Boldt’s understanding and use of the term “Puget Sound” would necessarily have been shaped by the fisheries reports and regulations that were under discussion at that time. It was therefore reasonable for the Court to consider and adopt the terminology used in fisheries management in discussing the case area.

This was not Judge Boldt’s only reference to Puget Sound as a broad area encompassing all the saltwater areas inward from the entrance to the Strait of Juan de Fuca. This same broad definition was used on defining the case area in Conclusion of Law # 7:

This case is limited to the claimed treaty-secured off-reservation fishing rights of the Plaintiff tribes as they apply to areas of the Western District of Washington within the watershed of Puget Sound and the Olympic Peninsula north of Grays Harbor, and in the adjacent offshore waters which are within the jurisdiction of the State of Washington.

U.S. v. Washington, 384 F.Supp. at 400. This language is taken verbatim from ¶ 5 of the Final Pretrial Order (“PTO”), Dkt. # 353, p. 5. This PTO was signed by all the parties to the case at that time, including the Upper Skagit, and approved by Judge Boldt

The parties’ and the Court’s common understanding of the extent of Puget Sound is indicated once again later in the PTO:

Each of the Plaintiff tribes has usual and accustomed fishing places within the area described in paragraph 5 supra, including, among others, the waters of Puget Sound, Strait of Juan de Fuca, off-shore marine waters, the Nisqually River, the Puyallup River and Commencement Bay, the White River, the Green-Duwamish River, Lake Washington, Cedar River, Stillaguamish River, Sauk River, Skagit River, the Nooksack River, the waters of Hood Canal and the rivers flowing into said Canal, the Hoko River, the Quilayute River and its tributaries, and the Hoh River.

Final Pretrial Order ¶ 7-14, Dkt. # 353, p. 122. In designating only the Strait of Juan de Fuca and Hood Canal as separate areas, this language necessarily subsumes the other bays and inlets, including the areas at issue here, into Puget Sound, as the term was used in this case.

The Court notes that the very maps used by the parties, admitted as exhibits by the Court on April 10, 1975 in the herring fisheries proceedings, also indicate a very broad region as Puget Sound. The maps themselves are National Oceanic and Atmospheric Administration (“NOAA”) nautical maps with separate designations for each bay and inlet. Exhibit JX-3, JX-4. However, written by the parties in large letters on each map are the designations “Central and Southern Puget Sound” (Ex-Mbit JX-3) and “Northern Puget Sound” (Exhibit JX-4). Thus, the map labeled by NOAA as “Strait of Georgia and Strait of Juan de Fuca” is designated by the parties as Northern Puget Sound. Exhibit JX-4. Similarly, the map labeled by NOAA as depicting “Admiralty Inlet and Puget Sound” is designated by the parties as Central and Southern Puget Sound. These handwritten designations on these maps are specific to this case, and indicate that the terms used and understood by the parties and the Court in the April, 1975 proceedings were Southern, Central, and Northern Puget Sound, rather than the NOAA designation of separate bays and inlets. The handwritten labels on these maps are thus highly significant to an understanding of Judge Bolt’s use of the term “Puget Sound” during the 1975 proceedings.

These definitions, maps, and references support the conclusion that in 1975 the parties and the Court had a common understanding of Puget Sound as the case area, encompassing all the saltwater areas inward from the mouth of the Strait of Juan de Fuca. Indeed, Judge Boldt so stated in September 1975, five months after the ruling at issue here, in addressing the' coho salmon fishery:

As used in this Order the term “Puget Sound”, when referring to the waters of origin or the place of salmon harvest, includes all the marine waters of Washington inland from the mouth of the Strait of Juan de Fuca (Tatoosh Island) together with the freshwater streams and lakes draining into such marine waters.

Order dated September 13, 1975, Dkt. # 1381. The Skagit and Swinomish assert that the language in this Order may not be considered, because the Court has limited the evidence under consideration in this subproceeding to that which was before the Court in April of 1975. However, this cited Order is not “evidence” within the meaning of that limiting rule, and it may therefore be considered as yet another indication of Judge Boldt’s understanding, in 1975, of the extent of Puget Sound for the purposes of this case. As noted, in every instance in 1975 where Judge Boldt did state a definition for Puget Sound, it is a broad one which necessarily includes both Saratoga Passage and Skagit Bay.

Indeed, that conclusion is the only logical one, in light of Judge Boldt’s description, in the very paragraph following the Suquamish U & A description, of the U & A of the Swinomish:

The usual and accustomed fishing places of the Swinomish Tribal Community include the Skagit River and its tributaries, the Samish River and its tributaries and the marine areas of northern Puget Sound from the Fraser River south to and including Whidbey, Camano, Fidal-go, Guemes, Samish, Cypress, and the San Juan Islands, and including Belling-ham Bay and Hale Passage adjacent to Lummi Island.

Finding of Fact # 6, U.S. v. Washington, 459 F.Supp. at 1049. This description, issued the same day and in the same Order as the Suquamish U & A, necessarily includes Skagit Bay and Saratoga Passage as within the “marine waters of northern Puget Sound”., and within the U & A of the Swinomish.

Earlier, the Court invited the parties, pursuant to direction given in Muckleshoot I, to supplement the record, if appropriate, with declarations of geography experts in order to aid the Court in interpreting the language of the Suquamish U & A in specific geographic terms. Dkt. # 71, citing Muckleshoot I, 141 F.3d at 1360. In light of the definitions in the record itself, and the maps known to be used by the Court as cited above, the Court now deems it unnecessary and inappropriate to turn to extrinsic evidence in order to fathom Judge Boldt’s meaning. This is particularly so in view of the lack of any evidence that Judge Boldt consulted a geography expert for definitions of the geographical terms he used; instead it appears that the terms were defined by the fisheries consultants.

Even if the Court were to consider the extrinsic evidence offered, and could find it relevant to Judge Boldt’s understanding, it would find that the experts’ opinions here are not based upon sufficient facts and data, and do not adequately reflect the application of scientific methods to the facts of this case. F.R.Evid. 702. The Upper Skagit and Swinomish experts Richard Hart and Theresa Trebon (both of whom are historians, not geography experts) examined historical maps, journals, dictionaries, atlases, and other sources. They both noted that the meaning of “Puget Sound” has changed over the years, from the original naming by Captain George Vancouver of the area at the southernmost end of the waterway. They both advanced the opinion that in 1975, as indicated on contemporary maps and charts, the term was generally used to describe the waters from the southern end up to (but not including) Admiralty Inlet. This opinion is clearly incompatible with Judge Boldt’s own language in describing the Suquamish and Swinomish U & A’s, which viewed Puget Sound as extending all the way north to the mouth of the Fraser River. The historians’ opinions must therefore be disregarded as useless in shedding light on Judge Boldt’s understanding of the extent of Puget Sound.

Moreover, it appears that neither historian consulted the official United States Geological Survey (“USGS”) definition of Puget Sound, which would have been a highly reliable source to consult, and more precise than maps. The Suquamish earlier asked the Court to take judicial notice of this official USGS definition of Puget Sound:

Bay, with numerous channels and branches, [which] extends 144 km S from the Strait of Juan de Fuca to Olympia; the N boundary is formed, at its main entrance, by a line between Point Wilson on the Olympic Peninsula and Partridge on Whidbey Island; at a second entrance, by a line between West Point on Whidbey Island, Deception Island, and Rosario Head on Fidalgo Island; at a third entrance, the S end of Swinomish Channel between Fidalgo Island and McGlinn Island.

U.S. Department of the Interior, USGS Geographic Names Information System, quoted at Dkt. # 6, p. 12. This “official” USGS definition of Puget Sound includes Saratoga Passage and Skagit Bay, which lie just south of the second-and third-named entrances. However, it appears that this definition was adopted in 1979, and no copy of the earlier version, adopted in 1961, has been presented to the Court. Therefore, the Court cites this definition here only as a basis for disregarding the experts’ opinions as insufficiently grounded in facts and data.

Similarly, it appears that neither historian consulted the Washington Administrative Code, which in 1975 codified many of the tribal fishing regulations, area by area, and could have shed some meaningful light on the question. Washington Administrative Code (“WAC”) 220-47-001 et seq. Indeed, the Exhibit JX-2a definition, adopted by Judge Boldt, mirrored the definition stated in these regulations:

The term “Puget Sound” shall be construed to include all the waters of Puget Sound outside the mouth of any river or stream including the Strait of Juan de Fuca, Georgia Strait, and all bays and inlets thereof.

WAC 220-16-210 (adopted 1969). Copies of certain regulations, namely WAC 220-47-206 through 220-47-268, defining the boundaries of various Puget Sound fishing areas, were provided to the Court by the Upper Skagit, in support of their motion. Declaration of David Hawkins, Dkt. # 144 Exhibit C, pp. 14-19. The definition of Puget Sound applicable to these regulations, quoted above, was not provided. However, the parties agreed with the Court at oral argument that the Court may take judicial notice of the WACs. Here, the Court does so only for the purpose of pointing out deficiencies in the facts and resources researched by the two experts.

The Suquamish also presented the declaration of an expert, geographer Dr. Jon Kimerling. The Skagit in their reply asked the Court to strike Dr. Kimerling’s opinion because he was identified only as a rebuttal witness, not in the original designation of experts. The Suquamish did not file a surreply to oppose the motion to strike. The Court therefore grants the motion to strike those portions of Dr. Kim-erling’s report which offer direct, as opposed to rebuttal, testimony.

Based on the discussion above, the Court finds that Judge Boldt demonstrated his understanding of the extent of Puget Sound by defining it in the record, and it is not appropriate to resort to extrinsic evidence to determine his meaning. As Judge Boldt defined Puget Sound as the case area, it includes the waters of Sarato-ga Passage and Skagit Bay.

B. Judge Boldt’s Intent

The determination that Judge Boldt in 1975 defined the term “Puget Sound” broadly, to include the disputed area here, does not end the inquiry. Under the rules developed by the Ninth Circuit, the Court must look to the actual evidence that was before Judge Boldt to determine if it “suggests that Judge Boldt intended something other than this apparent meaning when he wrote FF 5.” Muckleshoot I, 141 F.3d at 1359. In this inquiry, the burden is on the Upper Skagit and the Swinomish to demonstrate that there was no evidence before Judge Boldt that the Suquamish fished on the east side of Whidbey Island, or traveled through there on their way up to the San Juans and the Fraser River area.

Both this Court and the Ninth Circuit Court of Appeals have noted on several occasions that Judge Boldt relied heavily on the reports and testimony of anthropologist Dr. Barbara Lane in determining the U & A’s of various tribes. Muckleshoot I, 141 F.3d at 1359 (Dr. Lane’s report was cited and heavily relied upon by Judge Boldt in his decision); Muckleshoot III, 235 F.3d at 437 (Judge Boldt specifically noted that Dr. Lane’s testimony prevails over that of expert Dr. Riley in the event of a conflict).

Dr. Lane’s report on the Suquamish is titled “Identity, Treaty Status and Fisheries of the Suquamish Tribe of the Fort Madison Reservation” (“Report”). It was admitted as an exhibit on April 9, 1975. Dr. Lane testified in that day’s proceedings, and the transcript of her testimony appears in the record at Docket # 7268 (“Transcript”). In both her report and her testimony, Dr. Lane characterized the Su-quamish as a people who traveled widely by canoe, ranging as far north as the mouth of the Fraser River. She also stated that “[i]t was normal for all the Indians in western Washington to travel extensively either harvesting resources or visiting in-laws, ... visiting for social occasions such as potlatches, weddings, feasts ... or inter-community ceremonials or celebrations.” Transcript, p. 48.

In the section of her report devoted to fisheries, Dr. Lane stated that the Su-quamish fished for fall and winter salmon at the mouths of the Duwamish and Snohomish Rivers, and in the “adjacent marine areas.” Report, p. 15. In the spring and summer, they traveled by canoe as far north as Fort Langley on the Fraser River. Id. Dr. Lane stated,

In my opinion, the evidence that the Suquamish travelled [sic] to the Fraser river [sic] in pre-treaty times documents their capability to travel widely over the marine waters in what are now known as the Strait of Juan de Fuca and Haro and Rosario Straits. -According to oral tradition, the Suquamish regularly trav-elled through the San Juan Islands and to the Fraser river. •

The Fort Langley journal documents that the Suquamish did travel .to the Fraser river. It is my opinion that the Suquamish undoubtedly would have fished the marine waters along the way as they travelled. It is likely that one of the reasons for travel was to harvest fish. The Suquamish travelled to Whid-bey Island to fish and undoubtedly used other marine areas as well.

Report, p. 16. Dr. Lane also mentioned seasonal camps for smoke-curing fish on Bainbridge Island. Id.

The Report then listed the following places where the Suquamish traditionally took fish (salmon, herring, steelhead, halibut, and shellfish), by trolling, spearing, nets, or traps: Apple Cove Point, Hood Canal, Dye’s Inlet, Liberty Bay, the head of Sinclair Inlet, Skunk Bay, Union River and Curley Creek, Blake Island, Jefferson Head, Point to Point, Rich’s Passage, Orchard Point, Indianola, Ross Point, Miller’s Bay, Agate Passage, and the area between Chico and Erland’s Point. Report, p. 19-20. This list was accompanied in the Report by a map indicating the above-named fishing places, described as being within Suquamish territory. Report, p. 20. 22. In her testimony, Dr. Lane clarified that the places marked on this map, all on the western side of Puget Sound, were sites within Suquamish territory, and did not indicate other areas where they may have traveled to fish. Transcript, p. 57.

At the April 9, 1975 hearing, Dr. Lane was questioned at length about the travels of the Suquamish. She. affirmatively stated that they did travel through the San Juan Islands to the Fraser River. Transcript, p. 49. When questioned specifically about fishing in the area of the San Juan Islands, Birch Bay, and up to the Fraser River, she stated that she could not specifically cite to any documentation regarding Suquamish fishing for herring there, but that

it’s entirely likely that they fished for whatever was available as they were traveling through those waters and that they visited those waters regularly as a usual and accustomed matter in order to fish and to do other things.

Transcript, p. 52.

Upon Dr. Lane’s re-cross examination, the. discussion turned to a map that accompanied the Suquamish April 3, 1975 proposed fishing regulations. A copy of this map appears as an attachment to the Declaration of James Janetta, Dkt. # 146, p. 74. The map divides greater Puget Sound into numbered areas, clearly separated by lines drawn on the map. Area 1 includes the San Juan Islands, south about halfway down Whidbey Island, and the Strait of Juan de Fuca. Area 2 lies entirely above the San Juan Islands, extending to the Canadian border. Area 3 encompasses Samish Bay and Bellingham Bay. Area 4 includes the very south-eastern end of the Strait of Juan de Fuca, plus Admiralty Inlet, lower Puget Sound, Saratoga Passage, and Skagit Bay. Id. Referring to this map, attorney Paul Solomon for the Department of Game questioned Dr. Lane. The following colloquy occurred:

Q. And looking at their map attached, here, what has been described as Area Number 2, is this the area, roughly speaking, that Mr. Stay has asked you about, the Strait of Juan de Fuca, Haro Strait, and whatnot?

A. I think he has asked me about what is labeled 1 and 2 on that map.

Q. Both areas 1 and 2. That’s what your comments pertain to?

A. Well, I am speaking about the San Juan Island area, what is marked Number 1 there, and then 2.

Q. Now, your report on the Suquamish notes that they traveled from their regular area up north as far as the Fraser River, which would cover areas 1 and 2 on this.

A. Part of the Area 1

Q. Part of Area 1, and 2.

Transcript, pp. 56-57.

Nowhere in this discussion, or in Dr. Lane’s entire testimony, was the area designated as Area 4 on the map mentioned. Nor were Skagit Bay and Saratoga Passage ever mentioned in Dr. Lane’s testimony regarding the Suquamish travels and fishing, or in her Report. While she did testify that the Suquamish traveled up to the Fraser River, her reference to the Strait of Juan de Fuca, Haro and Rosario Strait places their route on the west side of Whidbey Island, from the Port Madison area and up through the San Juan Islands. Her one statement in her report that the Suquamish traveled “to” Whidbey Island is insufficient to support a finding that they fished or traveled in the waters on the eastern side of Whidbey Island.'

This absence of evidence regarding Squamish fishing or travel through Sarato-ga Passage and Skagit Bay leads the Court to conclude that the Upper Skagit and Swinomish have met their burden of demonstrating that Judge Boldt did not intend to include these areas- in the Su-quamish U & A. The Suquamish must now point to some evidence in the record that demonstrates that this conclusion is incorrect.

In support of their assertion that their U & A includes waters on the east side of Whidbey Island, the Suquamish point to Dr. Lane’s finding that the treaty-time Suquamish were competent mariners who traveled widely. They assert that those travels would necessarily have included waters east of Whidbey Island. However, as noted above, Dr. Lane testified that it was “normal” for “all the Indians in Western Washington to travel extensively ...” Transcript, p. 48. Thus such travel was not unique to the Suquamish, and no conclusion with respect to the subproceeding area can be drawn from the mere statement that they traveled widely. Dr. Lane’s actual testimony, as shown above, addressed only travel from the Suquamish territory up across the Strait of Juan de Fuca and through Haro and Rosario Straits, and the San Juan Islands. It would be pure speculation to conclude that those travels must also have included the east side of Whidbey Island, as there is absolutely no evidence in the record that they did so.

Next, the Suquamish point to the fact that they were found to fish at the mouth of the Snohomish River, which is on the eastern side of Whidbey Island, but well south of the area at issue. They assert that this fishing on the east side of Whid-bey Island means that they could have well headed north into Saratoga Passage in their travels. However, Suquamish fishing in this area was described by Dr. Lane as fall and winter fishing at the mouth of a river, presumably to take the abundant migrating salmon. This fall and winter fishery was described by Dr. Lane as separate and distinct from the spring and summer travels up to the Fraser River. Thus, this reference to fishing at the mouth of'the Snohomish River in the fall and winter cannot be deemed evidence that the Suquamish also traveled through that area on their way north to the Fraser River in the spring and summer. There was no mention in Dr. Lane’s Report of Suquamish fishing anywhere north of the Snohomish River in their fall and winter fishery.

Finally, the Suquamish point to the close relations between their people and the Skagit and Snohomish people, who had fishing camps on Whidbey and Camano Islands. They ask that the Court assume that the close relations between the tribes meant that the Suquamish must necessarily have camped and fished there as well. However, any connection between the Snohomish and Skagit camps on Whidbey and Camano Islands, and the Suquamish fishing in these areas, would again be purely speculative. There is nothing in Dr. Lane’s report that places Suquamish camps in these areas, or documents Su-quamish fishing there.

Judge Boldt found Dr. Lane’s testimony to be authoritative and reliable in the original U.S. v. Washington, 384 F.Supp. at 350. His description of the Suquamish U & A tracks nearly verbatim the language in Dr. Lane’s report, that the Suquamish had the “capability to travel widely over the marine waters in what are now known as the Strait of Juan de Fuca and Haro and Rosario Straits.” Report, p. 16. Further, she reported, they “regularly travelled [sic] through the San Juan Islands and to the Fraser River.” Id. In naming these specific areas in describing the Suquamish U & A, Judge Boldt demonstrated his intent to conform the Suquamish U & A to those areas documented by Dr. Lane. As noted by the Ninth Circuit Court of Appeals, where Judge Boldt has cited the specific, rather than the general, evidence presented by Dr. Lane, that evidence determines the boundaries of a tribe’s U & A. U.S. v. Lummi Indian Tribe, 235 F.3d at 451.

For these reasons, the Court concludes that Judge Boldt did not intend to include Saratoga Passage or Skagit Bay within the U & A of the Suquamish. Indeed, it appears from the record that this is how the Suquamish themselves interpreted their U & A. The Suquamish understanding, in 1975, that their U & A excluded waters on the eastern side of Whidbey Island is indicated in the fishing regulations they issued following the Court’s ruling on their U & A. These regulations appear in the record in the Declaration of David Hawkins, Dkt. # 144, Exhibit C. These regulations set guidelines for fishing in specified marine and freshwater fishing areas. No fishing was proposed in marine area 5, on the eastern side of Whidbey Island, which at that time included the areas at issue in this subproceeding. Id. While the Suquamish correctly argue that it would be improper to use these fishing regulations as evidence of Judge Boldt’s intent, it is not improper to use them as evidence of the Suquamish Tribe’s understanding of their own U & A at that time.

CONCLUSION

The Court has reviewed the evidence that was before Judge Boldt in the April 1975 proceeding that led to the determination of the Suquamish U & A. That evidence, including maps, fisheries reports, anthropological reports, and testimony, demonstrates that the Court and the parties had a common understanding that the term “Puget Sound” generally described a continuous body of saltwater in western Washington, including all the bays and inlets, and specifically including Skagit Bay and Saratoga Passage. On some occasions, areas such as the Strait of Juan de Fuca and Hood Canal were described separately. On other occasions, Puget Sound was treated as divided into regions, namely Southern, Central, and Northern Puget Sound. Regardless of these differences, the term “Puget Sound” as used generally by Judge Boldt included Saratoga Passage and Skagit Bay.

However, in describing the individual tribes’ usual and accustomed fishing areas, Judge Boldt was necessarily indicating only a portion of that broader Puget Sound, even when, as here, he used the term “Puget Sound” without qualification. Thus, for example, in the description of the U & A of the Muckleshoot Tribe, the Court has found that the term “saltwater of Puget Sound” refers only to that portion of Puget Sound in Elliott Bay. See, Muckleshoot III, 235 F.3d at 438. Similarly, it has been judicially determined that the Lummi U & A, described in part as “the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle” does not include the Strait of Juan de Fuca or Hood Canal. U.S. v. Lummi, 235 F.3d at 451-52.

Here, the Court finds that in describing the Suquamish U - & A as the marine waters of Puget Sound from Va-shon Island up to the Fraser River, Judge Boldt could not have intended to include Saratoga Passage or Skagit Bay. Judge Boldt relied heavily on the report and testimony of Dr. Barbara Lane, and indeed in describing the Suquamish U & A he used terms and place names taken directly from her report on the Suquamish fishing and travels. Dr. Lane reported and testified that the Suquamish traveled by canoe from their territory (Port Madison) up through the San Juan Islands, and Haro and Rosario Straits, as far as the Fraser River. Nothing in her testimony or her report indicated a Suquamish presence in Saratoga Passage or Skagit Bay, neither as winter fishing grounds, nor as a route for travel up to the San Juan Islands.

The Court thus finds that there are no factual issues in dispute, and that the requesting parties are entitled to judgment as a matter of law on their claim that the Suquamish U & A does not include Sarato-ga Passage or Skagit Bay. Accordingly, the motions for summary judgment by the Upper Skagit and Swinomish are GRANTED, and the Suquamish motion for summary judgment is DENIED. As no issues remain to be determined, the trial date of February 26 is now STRICKEN.

ORDER ON MOTION FOR

RECONSIDERATION

Subproceeding No. 05-2

(January 17, 2007)

This matter is before the Court for a ruling on a motion for reconsideration of the Court’s November 21, 2006 Order on Motion to Dismiss, filed by the Makah, Quinault, Puyallup, Quileute, Lummi, Su-quamish, Upper Skagit, Nisqually and Squaxin Island Tribes, and the Swinomish Indian Tribal Community (“Moving Parties”). Dkt. # 98. The Moving Parties seek reconsideration only of that portion of the Court’s Order holding that it does not have jurisdiction to resolve an inter-tribal dispute over the allocation of fisheries resources. The Court deems it unnecessary to direct that a response to the motion be filed and, for the reasons set forth below, shall deny the motion.

DISCUSSION

This matter was initiated as a Cross-Request for Determination filed by the Skokomish Indian Tribe (“Skokomish”) in Subproceeding 05-01, asking that the Court “determine and declare an equitable treaty fishing harvest allocation for the available harvest of all species of finfish and shellfish in Hood Canal.” Dkt. # 55. This Cross-Request was bifurcated from Subproceeding 05-01 and opened as a separate Subproceeding. The Port Gamble and Jamestown S’Klallam Tribes (“S’Klal-lam”) then moved to dismiss on the basis of lack of subject matter jurisdiction, res judicata and standing. The Court found reason to dismiss on both jurisdictional and res judicata, grounds, and did not reach the standing argument.

It is the jurisdictional determination which the Moving Parties now challenge. They assert that the Court’s retention of jurisdiction over “[disputes concerning the subject matter of this case which the parties have been unable to resolve among themselves” encompasses allocation disputes, and that this Court has specifically so held in the past. The Moving Parties have provided copies of eleven documents, plus citations to specific language in U.S. v. Washington, 626 F.Supp. 1405 (W.D.Wash.1985), in support of their contention. However, when these documents are considered in context and together with other rulings in this case, they provide no basis for reconsideration.

As noted in the previous Order, the Court retained jurisdiction in this matter for certain specified purposes, set forth in Paragraph 25 of the Permanent Injunction. U.S. v. Washington, 384 F.Supp. 312, 419 (W.D.Wash.1974), as amended by Court Order dated August 23, 1993. The relevant section of Paragraph 25 states,

(a) The parties or any of them may invoke the continuing jurisdiction of this court in order to determine:

(4) Disputes concerning the subject matter of this case which the parties have been unable to resolve among themselves[.]

C70-9213, Dkt. # 13599.

In moving to dismiss, the S’Klallam asserted that section (4) of Paragraph 25 is inapplicable to confer jurisdiction because the parties have settled their dispute, with finality, through the Hood Canal Agreement. In considering this argument, the Court exercised its inherent power to determine subject matter jurisdiction, and found that it did not have jurisdiction to consider the inter-tribal allocation dispute presented here, because such dispute did not concern the subject matter of this case. That subject matter, as stated clearly in the original decision in this case, is treaty-secured fishing rights:

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

U.S. v. Washington, 384 F.Supp. 312, 400 (W.D.Wash.1974). While the pool of species covered by this case has been expanded to include non-anadromous fish and shellfish, the subject matter remains limited to the application of treaty rights to the fish. Thus, one statement to which the Moving Parties point, that “this Court has jurisdiction over the subject matter of the dispute, the fish”, does not correctly state the subject matter of the case. Subject matter was defined in the first part of the same sentence: “This case is about enforcement of each of the tribes’ treaty fishing rights adjudicated in this case ...” U.S. v. Washington, 626 F.Supp. at 1470. While those treaty rights secured to the tribes the right to fish at their usual and accustomed places, they did not create the equitable right of any one tribe to harvest a certain portion of the treaty share.

Thus, a dispute over the exercise of a tribe’s primary right, or concerning its usual and accustomed fishing area, would fall under the Court’s jurisdiction, because it arises from a treaty right. But nowhere have the Moving Parties pointed to treaty language which confers upon any tribe, vis-a-vis another tribe, the right to an allocation of a portion of the treaty share of fish.

The Moving Parties contend that in its prior rulings in this case, “the Court has expressly held that it has subject matter jurisdiction over inter-tribal allocation disputes, and it has repeatedly exercised jurisdiction over such disputes.” Motion for Reconsideration, p. 2-3. In reviewing the cited Orders, the Court finds that they do not support the Moving Parties’ assertion with respect to jurisdiction over allocation disputes.

In 1983, in a subproceeding addressing the ocean troll fishery, the Court found that it had jurisdiction to determine whether one tribe’s actions infringed the adjudicated treaty rights of other tribes, U.S. v. Washington, 626 F.Supp. at 1470-71. The Court noted that a prior ruling that “the question of intertribal allocation is a matter for the tribes rather than the state to resolve” did not limit the Court’s jurisdiction over matters affecting treaty fishing. Id. The Court did not specifically rule that it could adjudicate an allocation dispute, apart from matters related to treaty rights. Nor did the Court in any way allocate the fishering among the tribes. Instead, the Court directed the disputing tribes to “confer and negotiate their differences with respect to sharing of treaty runs.” Id. at 1471.

The Moving Parties have also cited to Subproceeding 86-5. There, the tribes designated as South Puget Sound tribes alleged that salmon originating in their streams were being intercepted upon return by tribes fishing further north, so that there were few or no salmon left to reach South Sound waters and streams. The tribes had previously negotiated among themselves an allocation of the migrating salmon, as exemplified by the 1980 South Puget Sound Region of Origin Treaty Salmon Allocation Agreement. Subpro-ceeding 86-5, Dkt. # 173. Then, in 1986, the South Puget Sound tribes requested an injunction to protect South-Sound coho salmon stocks from interception. Dkt. # 98, Exhibit 1. Although the Orders provided by the Moving Parties do not specifically address subject matter jurisdiction, the Court notes that jurisdiction over this issue would be appropriate because it directly concerned treaty rights of the South Puget Sound tribes, rather than an allocation as such. That is, the South Sound tribes sought to enforce their right to take salmon at their usual and accustomed fishing places, as provided in the relevant treaties. If the entire tribal share of salmon were intercepted by tribes fishing farther north, the treaty rights of the South Sound tribes to take fish in their usual and accustomed areas would be infringed. Jurisdiction was therefore appropriate to protect treaty fishing rights. Further, it appears from the various Orders filed that the interested tribes all consented to have the Court resolve the matter.

Consent to adjudication of the matter was also a factor in subproceeding 91-1, which has also been cited by the Moving Parties. In the 2001 Order Establishing Interim Halibut Fishery Management Plan”, the Court stated,

The court has retained jurisdiction to consider tribal treaty fishing issues in proceedings ancilliary [sic] 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.

Subproceeding 91-1, Dkt. # 75, p. 5. This was another case in which treaty-based fishing rights were at issue: the moving tribes alleged that unrestricted halibut fishing in the ocean by certain tribes would quickly exhaust the entire tribal quota, leaving few or no halibut for the other tribes. See, Report and Recommendation on Halibut Allocation, Subproceeding 91-1, Dkt. # 2240, p. 2. Again, jurisdiction was proper in order to protect certain tribes’ treaty rights to fish for halibut.

Finally, the Moving Parties point to sub-proceeding 96-1, regarding the black cod fishery. In that subproceeding, three petitioning tribes alleged that fishing by the Quileute tribe with pot gear would completely preempt their long-line fishery, or force them to use pot gear themselves. In granting a motion for a preliminary injunction, the Court specifically noted that the Quileute Tribe had agreed with the petitioning tribes’ request for an equitable allocation. Subproceeding 96-1, Dkt. #47, p. 3. It was this consent that provided a basis for the Court’s jurisdiction to determine an allocation.

Pursuant to Paragraph 25 of the permanent injunction in this case, jurisdiction has been retained for certain limited purposes, as set forth in that paragraph. The parties to this case, whether tribal, state, or federal, have waived sovereign immunity for those purposes only. In consideration of the importance of sovereign immunity, such purposes may not be broadened without the parties’ consent.

In 1993, in objecting to a proposed “Sunset Order” which would close this case, the tribes invoked sovereign, immunity as a basis for asking that the Court keep this case open until “all the disputes between these parties regarding treaty fishing rights have been resolved.” Dkt. # 98, Exhibit 9, p. 7. While the tribes speculated that such adjudicable disputes could include resolution of intertribal allocation issues, there was no such specific finding by the Court. Id. It is this Court’s view that equitable allocation is a management issue, and does not arise from the tribes’ treaty rights. The tribes in their objection to the Sunset Order, including every tribe now before the Court as a Moving Party, assured the Court that concern over Court involvement in fisheries regulation was without basis, because “most of the underlying disputes are not with management per se but with essential legal issues which need determination by a court of law.” Id., p. 5.

A simple request for equitable allocation, in the absence of factors by which one or more tribes may completely preempt another tribe’s right to fish, does not present a legal issue for determination by this Court. The Court thus declines to reconsider its ruling that it does not have jurisdiction under Paragraph 25 to consider such request, in the absence of consent by all parties. The motion for reconsideration is accordingly DENIED.

STIPULATION OF PLAINTIFFS AND STATE OF WASHINGTON REGARDING SCOPE OF SUB-PROCEEDING, AND ORDER

Subproceeding No. 01-1 (Culverts)

(January 29, 2007)

In order to resolve potential disagreement concerning the scope of the claims in this sub-proceeding and the relief, if any, that may be appropriate to resolve those claims, and thereby to promote the objectives of Federal Rules of Civil Procedure 1, 8, and 16, Plaintiffs and the State of Washington stipulate as follows, and move for entry of a corresponding order:

1. The scope of this sub-proceeding only includes those culverts that block fish passage under State-owned roads. Culverts that do not block fish lie beyond the scope of this case, even though they may adversely affect river or stream ecological functions. Tidegates are also beyond the scope of this sub-proceeding.

2. In any remedy stage of this sub-proceeding, the Plaintiffs are not limited in arguing and the Court is not limited in granting relief that requires that culverts identified as adversely affecting fish passage be repaired to remove any impediments to both fish passage and to ecological functions. This Stipulation does not reduce or enlarge the equitable powers of the Court to formulate a remedy consistent with the orders entered in this case and the application of applicable law.

3. In any remedy stage of this sub-proceeding, the parties reserve the right to argue whether the culvert inventories were adequate to identify the culverts that do not pass fish, and whether further inventories should be ordered to identify such culverts. Culverts that exist on the date that the Court enters a final order in this sub-proceeding and that affect ecological functions but are not fish passage barriers need not be inventoried, repaired, or replaced as part , of any relief ordered in this sub-proceeding.

4.The Plaintiffs are not limited as a result of this sub-proceeding from seeking relief against the State in another sub-proceeding or case, to repair or replace State-owned tidegates or culverts that do not block fish but adversely affect river or stream ecological functions. The Plaintiffs may seek relief against the State to repair or replace State-owned tidegates and culverts that may be identified in the future as adversely affecting fish passage or ecological functions, but which are not identified as fish passage barriers in any inventory of barriers prepared prior to or pursuant to entry of a final order in this sub-proceeding.

ORDER

JOINT MOTION FOR ORDER AND CONSENT DECREE APPROVING SETTLEMENT AGREEMENT

Note On Motion Calendar: June 20, 2007

Subproceeding No. 89-3(Shellfish)

The Parties identified below seek this Court’s entry of an Order that approves the Parties’ Settlement Agreement attached hereto as Exhibit A. The Parties to the Settlement Agreement are as follows:

Plaintiff Indian Tribes: Tulalip, Stilla-guamish, Sauk Suiattle, Puyallup, Squaxin Island, Makah, Muckleshoot, Upper Skag-it, Nooksack, Nisqually, Lummi, Skokomish, Port Gamble S’Klallam, Lower Elwha Klallam, Jamestown S’Klallam, Suquamish and Swinomish (“Tribes”);

Plaintiff United States of America;

Defendant State of Washington; and

Intervenor-Defendant Puget Sound Shellfish Growers: Taylor United, Inc.; Olympia Oyster Company; G.R. Clam & Oyster Farm; Cedric E. Lindsay; Minter-brook Oyster Company; Charles and Willa Murray; Skookum Bay Oyster Company; and J & G Gunstone Clams, Inc. (“Growers”).

The undersigned representatives of the Parties affirm and agree that the Settlement Agreement is fair and reasonable and, by the signatures of their representatives below, the Parties consent to and are fully bound by all its terms. The undersigned further affirm and agree that the contingencies identified in ¶ 9.A.1, ¶ 9.A.2, and II 9.A.4 of the Settlement Agreement have been fully and completely satisfied, as evidenced by the attached Exhibits B through D.

Each undersigned representative of the Parties to this Consent Decree certifies that he or she is fully authorized by that Party to enter into and execute the terms and conditions of this Joint Motion for Approval of Settlement Agreement, and to legally bind such Party to the Order and the Settlement Agreement. By their representatives’ signatures below, the Parties consent to the entry of the Order Approving the Settlement Agreement.

EXHIBIT A

SETTLEMENT AGREEMENT

THE HONORABLE RICARDO S. MARTINEZ

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

UNITED STATES OF AMERICA, et al., Plaintiffs

v.

STATE OF WASHINGTON, et al., Defendants

Case No.: C70-9213

Subproceeding No. 89-3 (Shellfish)

SETTLEMENT AGREEMENT

The Tribes listed in section 1 (“Tribes”), the Puget Sound Shellfish Growers (“Growers”), the United States Department of the Interior, and the State of Washington, by and through the undersigned representatives, hereby enter into this Settlement Agreement.

WHEREAS the Tribes have asserted treaty right claims to take shellfish from lands owned, leased, or otherwise subject to harvest by the Growers, which claims have resulted in the following decisions:

1. United States v. Washington, 873 F.Supp. 1422 (W.D.Wash.1994).

2. United States v. Washington, 898 F.Supp. 1453 (W.D.Wash.1995) (as modified by the Stipulation and Order Amending Shellfish Implementation Plan, dated April 8, 2002) (hereinafter the “Revised Shellfish Implementation Plan”).

3. United States v. Washington, 909 F.Supp. 787 (W.D.Wash.1995).

4. United States v. Washington, 157 F.3d 630 (9th Cir.1998);

WHEREAS the parties to this Settlement Agreement acknowledge that the district court found that the Growers are “innocent purchasers who had no notice of the Tribes’ fishing right when they acquired their property.” 898 F.Supp. at 1457;

WHEREAS the parties agree that numerous unresolved issues remain outstanding regarding implementation of the Tribes’ treaty right to take shellfish from lands owned, leased or otherwise subject to harvest by the Growers; and

WHEREAS the Tribes, Growers, the United States Department of the Interior, and the State of Washington are interested in resolving any and all disputes between and among them regarding implementation of the Tribes’ treaty right to take shellfish from lands owned or leased by the Growers, they agree as follows.

SETTLEMENT AGREEMENT

1. TRIBES.

The Tribes bound by this Settlement Agreement are the Tulalip, Stillaguamish, Sauk Suiattle, Puyallup, Squaxin Island, Makah, Muckleshoot, Upper Skagit, Nook-sack, Nisqually, Lummi, Skokomish, Port Gamble S’Klallam, Lower Elwha Klallam, Jamestown S’Klallam, Suquamish, and the Swinomish Tribes (hereinafter “Tribes”). The Tribes are parties to the following treaties: Treaty of Medicine Creek, December 26, 1854 (10 Stat. 1132); Treaty of Point Elliott, January 26, 1855 (12 Stat. 927); Treaty of Point No Point, January 26, 1855 (12 Stat. 933); Treaty with the Makah, January 31, 1855 (12 Stat. 939) (hereafter “the treaties”).

2. INTERVENOR DEFENDANTS.

A. The intervenor defendants bound by this Settlement Agreement shall include the following: Taylor United, Inc.; Olympia Oyster Company; G.R. Clam & Oyster Farm; Cedric E. Lindsay; Minterbrook Oyster Company; Charles and Willa Murray; Skookum Bay Oyster Company; and J & G Gunstone Clams, Inc. These growers need only file with the Court and serve on Plaintiff Tribes by March 1, 2008 a sufficiently identified list of their tidelands, for example, by county and county tax parcel, owned, leased from a private party or otherwise subject to a right to harvest by these growers as of August 28, 1995.

B. In addition, all persons who are members of the Puget Sound Shellfish Growers Legal Defense Fund, Inc., and who on or before August 28, 1995, owned, leased from a private party, or otherwise had a right to commercial harvests of shellfish from tidelands in Washington State, and either:

(i) on or before August 28, 1995, had an active aquatic farm registration for commercial shellfishing from those tidelands and a Washington Department of Health certification for those tidelands, provided, that they intervene and file with the Court and serve on Plaintiff Tribes by March 1, 2008, copies of the documents that establish their compliance with this subsection and a sufficiently identified list of those tidelands, for example, by county and county tax parcel; or

(ii) on or before the date the person seeks to intervene had an active aquatic farm registration for commercial shell-fishing and a Washington Department of Health certification for those tidelands, provided, that such persons Intervene and file with the Court and serve on the Plaintiff Tribes by March 1, 2008, copies of documents that establish their compliance with this subsection and a sufficiently identified list of those tidelands, for example, by county and county tax parcel, and, further, file documentary evidence establishing that those tidelands were used for sustained commercial production of shellfish during some portion of the time between January 1, 1985, and August 28,1995;

shall be covered by the terms of this Settlement Agreement.

C.In addition, a person who between August 28, 1995 and March 1, 2008 acquires the right to harvest from a person whose tidelands are covered under section 2(A) and section 5 or from a person whose tidelands would have been eligible to become covered tidelands under section 2(B)(i) or (ii) and section 5, so long as the eligibility for including the tidelands under section 2(B)(i) or (ii) is documented as provided in those subsections, and on or before the date the person seeks to intervene had an active aquatic farm registration for commercial shellfishing and a Washington Department of Health certification for those tidelands, provided, that such persons intervene and file with the Court and serve on the Plaintiff Tribes by March 1,2008, copies of documents that establish their compliance with this subsection, shall be covered by the terms of this Settlement Agreement.

D. Any person holding a commercial shellfish lease for state tidelands identified in section 4(A) shall be covered by the terms of this Settlement Agreement.

E. A person who at any time acquires the right to harvest from tidelands covered pursuant to section 5, from a person who actually intervened pursuant to section 2(A), 2(B), 2(C), 2(D), or this subsection, may become bound by the terms of this Settlement Agreement by filing with the Court a request to intervene in this proceeding for that limited purpose, supported by a copy of their aquatic farm registration for' commercial shellfishing filed with the Washington Department of Fisheries and Wildlife, their Washington Department of Health certification for those tidelands, and their deed, lease or contract showing the locations of the tidelands on which they have acquired the right to harvest.

F. All persons who fulfill the conditions of section 2(8), 2(C), 2(D) or 2(E) may intervene as defendants for the limited purpose only of participation in this Settlement Agreement. Any person who fails to actually intervene, except to the extent that a person is covered pursuant to section 2(D), shall have no rights under this Settlement Agreement.

G. Participation in this Settlement Agreement is a result of settlement and compromise and establishes only those persons who are covered by this Settlement Agreement. Such participation does not represent an admission or agreement by any party that a participant could or could not qualify as a commercial shellfish grower within the terms of the Revised Shellfish Implementation Plan. Therefore no person may refer to or rely upon this Settlement Agreement, nor any person’s participation in the Settlement Agreement, and the Court shall not consider any such evidence, in any dispute as to the requirements necessary for any person to qualify as a commercia