Lower Elwha Klallam Indian Tribe; Jamestown S'klallam Tribe; Port Gamble S'klallam Tribe v. Lummi Nation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOWER ELWHA KLALLAM INDIAN
TRIBE; JAMESTOWN S'KLALLAM
TRIBE; PORT GAMBLE S'KLALLAM
TRIBE,
Petitioners-Appellees,
v.
LUMMI NATION,
Respondent-Appellant,
TULALIP TRIBES; MAKAH INDIAN
TRIBE; NISQUALLY INDIAN TRIBE;
SKOKOMISH INDIAN TRIBE; SQUAXIN
ISLAND TRIBE; STATE OF
WASHINGTON; STILLAGUAMISH
TRIBE; SUQUAMISH TRIBE;
SWINOMISH INDIAN TRIBAL
COMMUNITY; UPPER SKAGIT INDIAN
TRIBE,
Real Parties in Interest.
No. 19-35610
D.C. No. 2:11-sp-00002-RSM
MEMORANDUM*
LOWER ELWHA KLALLAM INDIAN
TRIBE,
Petitioner,
No. 19-35611
D.C. No. 2:11-sp-00002-RSM
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUN 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and
JAMESTOWN S'KLALLAM TRIBE;
PORT GAMBLE S'KLALLAM TRIBE,
Petitioners-Appellants,
v.
LUMMI NATION,
Respondent-Appellee,
TULALIP TRIBES; MAKAH INDIAN
TRIBE; NISQUALLY INDIAN TRIBE;
SKOKOMISH INDIAN TRIBE; SQUAXIN
ISLAND TRIBE; STATE OF
WASHINGTON; STILLAGUAMISH
TRIBE; SUQUAMISH TRIBE;
SWINOMISH INDIAN TRIBAL
COMMUNITY; UPPER SKAGIT INDIAN
TRIBE,
Real Parties in Interest.
LOWER ELWHA KLALLAM INDIAN
TRIBE,
Petitioner-Appellant,
and
JAMESTOWN S'KLALLAM TRIBE;
PORT GAMBLE S'KLALLAM TRIBE,
Petitioners,
No. 19-35638
D.C. No. 2:11-sp-00002-RSM

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v.
LUMMI NATION,
Respondent-Appellee,
TULALIP TRIBES; MAKAH INDIAN
TRIBE; NISQUALLY INDIAN TRIBE;
SKOKOMISH INDIAN TRIBE; SQUAXIN
ISLAND TRIBE; STATE OF
WASHINGTON; STILLAGUAMISH
TRIBE; SUQUAMISH TRIBE;
SWINOMISH INDIAN TRIBAL
COMMUNITY; UPPER SKAGIT INDIAN
TRIBE,
Real Parties in Interest.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Submitted June 2, 2021**
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and FOOTE,*** District
Judge.
The parties appeal the district court’s application of our opinion and remand
in United States v. Lummi Nation, 876 F.3d 1004 (9th Cir. 2017) (“Lummi III”).
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.

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We held in Lummi III that the “waters west of Whidbey Island” are
encompassed in the Lummi Nation’s “usual and accustomed” fishing grounds
(“U&A”). For purposes of that opinion, we equated the phrase “waters west of
Whidbey Island” with the phrase “the waters contested here.” See id. at 1008
(describing “the waters contested here” as “the waters west of Whidbey Island”).
Therefore, in stating that the “waters west of Whidbey Island” are part of the
Lummi Nation’s U&A, we held that the “waters contested here” are part of the
Lummi Nation’s U&A. The “waters contested here,” in turn, are the waters
“northeasterly of a line running from Trial Island near Victoria, British Columbia,
to Point Wilson on the westerly opening of Admiralty Inlet, bounded on the east by
Admiralty Inlet and Whidbey Island, and bounded on the north by Rosario Strait,
the San Juan Islands, and Haro Strait.” Lummi III held that these waters are part of
the Lummi Nation’s U&A.
Lummi III did not address, nor did we have occasion to address, the waters
west of the line running from Trial Island to Point Wilson (“the Trial Island line”).
However, in holding that the waters east of the Trial Island line are included in the
Lummi Nation’s U&A, we relied on the geographic fact that those waters lie
between “the waters surrounding the San Juan islands” and “Admiralty Inlet” and
the general evidence of travel between those two areas. Lummi III, 876 F.3d at
1009. Under the logic of Lummi III, the waters to the west of the Trial Island line

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are not part of the Lummi Nation’s U&A, because those waters do not similarly lie
between “the waters surrounding the San Juan islands” and “Admiralty Inlet.” Id.
Finally, by declining to determine the outer bounds of the Strait of Juan de Fuca,
which is excluded from the Lummi Nation U&A, we held that the Lummi Nation
U&A and the Strait of Juan de Fuca do not necessarily share a boundary. Id. at
1011.
Because the district court interpreted Lummi III to hold only that the Lummi
Nation has the right to fish in some portion of the contested waters, we reverse and
remand for the purpose of entering judgment in favor of the Lummi Nation on the
ground that the Lummi Nation U&A includes the entirety of the area contested in
this subproceeding, e.g. the waters “northeasterly of a line running from Trial
Island near Victoria, British Columbia, to Point Wilson on the westerly opening of
Admiralty Inlet, bounded on the east by Admiralty Inlet and Whidbey Island, and
bounded on the north by Rosario Strait, the San Juan Islands, and Haro Strait.”
The district court did not abuse its discretion in denying the S’Klallam’s
motion for leave to amend the Request for Determination (“RFD”) and in striking
S’Klallam’s expert report. See In re Western States Wholesale Nat. Gas Antitrust
Litig., 715 F.3d 716, 736 (9th Cir. 2013) (reviewing denial of motion for leave to
amend for abuse of discretion). The Lummi Nation’s fishing rights in the waters
east of the Trial Island line were resolved by Lummi III, and the rights in the waters

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west of the Trial Island line are not presently contested. The amended RFD would
therefore be futile—rendering harmless any error in denying leave to amend and in
striking the expert report. See Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.
2004).1
REVERSED with respect to the district court’s interpretation of Lummi
III, AFFIRMED with respect to the district court’s denial of leave to amend
and striking of the expert report, and REMANDED for entry of judgment in
favor of the Lummi Nation. Each party shall pay its costs on appeal.
1 The Motion to Take Judicial Notice [Docket Entry No. 71] is denied as moot.

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