# United States v. Washington

> District Court, W.D. Washington · December 31, 2012 · 20 F. Supp. 3d 899

URL: https://www.frixlaw.com/law-library/cases/7224422

## Case

- **Full name:** UNITED STATES of America v. State of WASHINGTON
- **Court:** District Court, W.D. Washington
- **Decided:** December 31, 2012
- **Citations:** 20 F. Supp. 3d 899
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Martinez
- **Judges:** Martinez, Strombom
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7224422

## How later opinions describe it (automated extraction)

- finding a possibility of prejudice to the plaintiff in 21 a breach of contract claim because “[w]ithout entry of default judgment, Defendant could 22 escape liability”

## Opinion text

*904 TABLE OF CONTENTS
ORDER PAGE
Order Granting Suquamish Tribes’ Motion to Deny A & K Trust’s request for Intervenor Status (6/13/08) 905
Order Granting Suquamish Tribe’s Motion for Summary Judgment (6/13/08) 908
Order Granting Suquamish tribe’s Motion for Summary Judgment re A & K Trust Tidelands ad Chico Bay (6/13/08) 910
Order on Rule 60(B) Motion to Reopen (9/2/08) 912
Joint Motion for Order to Adopt Stipulation Regarding Implementation of Shellfish Settlement Agreement (10/10/08) 934
Order Adopting Stipulations Regarding Implementation of Shellfish Settlement Agreement (10/21/08) 935
Order on Motion to Dismiss (11/13/08) 935
Order on Motion for Certificate of Appealability (1/5/09) 937
Order on Motion to Dismiss (6/16/09) 940
Order on Motion for Reconsideration (7/14/09) 941
Order on Motion of Makah Indian Tribe to Clarify the Status Quo (2/26/10) Minute Order — Motion (3/5/10) 944
Order (3/10/11) 945
Order on Motion for Leave to File a Cross-request for Determination (4/12/11) 946
Order on Motions to Dismiss (9/28/11) 948
Order Regarding Dispute Resolution (10/18/11) 951
Amended Order Granting Suquamish and Tulalip joint Request for Clarification of Section III.B.l & B.6 of 1983 Muckleshoot Suquamish and Tulalip Settlement Agreement (10/27/11) 958
*905 Supplemental Order on Paragraph 25 Procedures (11/9/11) 959
Order on Motion for Reconsideration (2/13/12) 960
Order on Motion to Dismiss (2/13/12) 961
Order on Motions for Reconsideration (3/11/12) 962
963 Order on Motions to Modify the Status Quo (3/14/12)
Order on Motion for Clarification (3/16/12) 967
Minute Order (3/23/12) 968
Order on Motion for Leave to Intervene (8/9/12) 968
968 Order on Motion for Summary Judgment (10/11/12)
980 Order on Motion to Quash and For a Protective Order (11/20/12)
982 Order on Electronic Filing Procedures for C70-9213 (11/20/12)
982 Amended Supplemental Order on Paragraph 25 Procedures (11/20/12)
Order (12/5/12) 983
COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 2012)
ORDER GRANTING SUQUAMISH TRIBE’S MOTION TO DENY A & K TRUST’S REQUEST FOR INTER-VENOR STATUS
Subproceeding Nos. 89-3 (Shellfish), 89-3-05
(June 13, 2008)
RICARDO S. MARTINEZ, District Judge.
This matter is before the Court for consideration of a motion filed by the Su-quamish Tribe to deny A & K Trust’s Request for Intervention. Dkt. # 14565 (also docketed as Dkt. # 31 in Subproceed--ing 89-305). This motion was filed pursuant to the Settlement Agreement filed in Subproceeding 89-3, and procedures set forth in the subsequent Order adopting the Settlement Agreement. Dkt. ## 14476, 14482. The A & K Trust has appeared to oppose the motion. Oral argument was heard on June 11, 2008, and the matter has been fully considered. For the reasons set forth below, the Court shall grant the motion.
DISCUSSION
On June 20, 2007, the parties filed a Settlement Agreement in this matter, setting forth an agreement by which the Tribes, the Intervenor Shellfish Growers, the State of Washington, and the United States settled a long-standing dispute regarding the Tribes’ treaty right to take shellfish on tidelands owned by the State of Washington or owned or leased by private parties. The significant aspect of this agreement is that the Tribes agreed that upon the fulfillment of certain.contingencies (leading to the payment of $33 million to the Tribes), “any and all shellfish on ‘covered tidelands’ ... are deemed as of the date of this Settlement Agreement to be ‘staked and cultivated by citizens’ for the purpose of implementing the Treaties ...” Settlement Agreement, ¶ 6A. The *906 designation of the “covered tidelands” as “staked and cultivated” thus brought these tidelands under the so-called Shellfish Proviso of the Stevens’ Treaties, which reserved to the Tribes the right of taking fish in common with all citizens of the Territory, “Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens.” United States v. Washington, 157 F.3d 630, 638 (9th Cir.1998). This determination as to what constitutes a “staked and cultivated bed” immune from Tribal harvest has been the focus of the on-going “Density Dispute” (Subproceeding 89-3).
The “covered tidelands” to be designated as “staked and cultivated” are those owned or leased by eight named shellfish growers who were the original Intervenors in this Subproceeding: Taylor United, Inc.; Olympia Oyster Co.; G.R. Clam & Oyster Farm; Cedric E. Lindsay; Minter-brook Oyster Co.; Charles and Willa Murray; Skookum Bay Oyster Co.; and J & G Gunstone Clams, Inc. Settlement Agreement, ¶ 2(A). Pursuant to the Settlement Agreement and a subsequent stipulation regarding its implementation, other shellfish growers who meet the conditions set forth in the Settlement Agreement could become Intervenors and be bound by the terms of the Settlement Agreement by filing a Notice and Request for Intervention on or before March 1, 2008. Such Notice must include documentation which would establish that the requirements for Intervenor status set forth in the Settlement Agreement had been met. Settlement Agreement, ¶¶ 2(B), 2(C). The Tribes would then have eight months to file objections to any such Notice. Stipulation Regarding Implementation of Settlement Agreement, Dkt. # 14481. A & K Trust (“the Trust”) filed a Notice and Request for Intervention on February 29, 2008. Dkt. # 14497. To date, the Su-quamish Tribe’s objection to the Notice filed by the Trust is the only objection filed by the Tribes.
The criteria that a grower must meet to qualify for Intervenor status under the Settlement Agreement, and have tidelands regarded as “covered tidelands”, are set forth in that Agreement. First, the person must be a member of the Puget Sound Legal Defense Fund. Second, the grower must have, on or before August 28, 1995, owned tidelands, leased them from a private party, or “otherwise had a right to commercial harvests of shellfish from tidelands” and either (1) had an active aquatic farm registration for commercial harvest of shellfish from tidelands on or before August 28, 1995, and a Washington Department of Health certification for those tidelands; or (2) on or before the date the party seeks intervention, he or she had an active aquatic farm registration for commercial shellfishing on designated tidelands, together with a health certification for those tidelands, and the person provides 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. Settlement Agreement, ¶¶ 2(B)(i), 2(B)(ii). In addition, a grower seeking to qualify under either section must provide sufficient identification of the specific tidelands to be covered, as by county and tax parcel number. A third route to qualification, not relevant here, provides for Intervenor status for growers who acquired the right to grow and harvest shellfish from someone else who already qualified, either as one of the original eight Intervenors, or through one of the routes set forth in ¶¶ 2(B)(i) and (ii).
Together with the Notice and Request for Intervention, the Trust filed over 350 pages of documents, including copies of aquatic farm registrations, deeds, tax rec *907 ord, lease agreements, and licenses, all purportedly relating to various tidelands in Dyes Inlet, Washington. 1 Dkt. # 14497. In moving to deny Intervenor status to the Trust, the Suquamish Tribe asserts that none of the documentation satisfies the requirements set forth under either ¶ 2(B)(i) or (ii), and that none of it sufficiently identifies the specific tidelands to be considered as “covered tidelands.”. In opposing the motion, the Trust identifies six particular tax parcels, and argues that various leases and oyster transfer permits provide sufficient documentation to meet the requirements set forth under ¶ 2(B)(ii) of demonstrating “sustained commercial production” on those tidelands at some time between January 1, 1985, and August 28, 1995. The Court finds that is not so.
The tidelands which the Trust seeks to include as “covered tidelands” in its Notice and Request for Intervention lie adjacent to Chico Bay, Phinney Bay, and Erlands Point, all within Dyes Inlet, Washington. It is undisputed that this entire area was closed to the commercial harvest of shellfish from the late 1960’s until 1996 — after the crucial date of August 28, 1995, due to pollution of the surrounding waters. In 1996, some areas of Dyes Inlet were opened to restricted harvest, as by relying clams from there to clean waters elsewhere for a period of purging. However, prior to August 28, 1995, even that limited harvest was not allowed.
The Trust thus conceded at oral argument that no “sustained commercial production” took place on these tidelands between 1985 and August 28, 1995, as required to qualify under ¶ 2(B)(ii). Instead, the Trust urged the Court to consider that under the circumstances here, where the tidelands were closed to harvest throughout the critical period, a demonstration of “sustained commercial activity ” should be considered sufficient to meet the requirement set forth in the Settlement Agreement. The Trust offered several documents which purported to show commercial “activity” during the relevant period, such as oyster transfer permits. Trust’s Response, filed in Subpro-eeeding 89-305 only, Dkt. #36, Exhibits C, D. However, these unauthenticated documents are inadmissible hearsay, and further fail to provide any indicia tying them to the tidelands at issue here. More importantly, even if these documents could be considered as evidence of commercial activity on the Trust’s tidelands, the Court cannot adopt the Trust’s argument that commercial “activity” should be considered the functional equivalent of commercial “production” for the purposes of the Settlement Agreement.
The language of the Settlement Agreement clearly and unequivocally states that in order for tidelands to qualify as “covered tidelands” and be considered “staked and cultivated” under ¶ 2(B)(ii) of the Agreement, documentation must be provided “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.” Settlement Agreement, ¶ 2(B)(ii). There is no exception in this carefully-crafted Agreement for tidelands that were closed to commercial production and harvest during that time. Nor can the Court make that exception. The designation of beds as “staked and cultivated” within the language of the Shellfish Proviso is in derogation of the Tribes’ treaty right to harvest shellfish at their usual and accustomed places. Therefore, any provi *908 sion regarding that designation, including the Tribes’ agreement in the Settlement Agreement, must be strictly construed. Where the language in the Agreement requires a demonstration of “sustained commercial production the Court cannot expand the language to include “sustained commercial activity.”
As the Trust has failed to produce appropriate documentary evidence that its leased tidelands are “covered tidelands” within the provisions of the Settlement Agreement, it has not established Interve-nor status in this matter. The motion of the Suquamish Tribe to deny the A & K Trust’s Request for Intervention in the Shellfish Settlement Agreement (Dkt. # 14565 in Subproceeding 89-3, Dkt. # 31 in Subproceeding 89-305) is accordingly GRANTED. The Clerk shall file a copy of this Order in both Subproceeding 89-3 and in Subproceeding 89-305.
ORDER GRANTING SUQUAMISH TRIBE’S MOTION FOR SUMMARY JUDGMENT
Subproceeding No. 89-3-05 ■
(June 13, 2008)
This matter is before the Court for consideration of the Suquamish Tribe’s Motion for Summary Judgment as to their Request for Dispute Resolution. Dkt. # 31. The Request for Dispute Resolution was filed pursuant to authority conferred by the Amended Shellfish Implementation Plan ¶ 9. 1. United States v. Washington, C70-9213, Subproceeding 89-3, Dkt. # 14331 (April 8, 2002). 1 The Suquamish Tribe asks that the Court adopt and enforce a plan proposed by the Suquamish for the harvest of clams on tidelands leased by A & K Trust (“Trust”) at Chico Bay in Kitsap County, Washington. The Trust has opposed the motion. The Court heard oral argument on June 11, 2008, and the matter has been fully considered. For the reasons set forth below, the motion of the Suquamish Tribe shall be GRANTED.
DISCUSSION
This is the second time these parties have been before the Court regarding the Suquamish Tribe’s treaty harvest of clams from tidelands leased by A & K Trust. See, Subproceeding 89-303. In the prior dispute, regarding the Trust’s leased tidelands at Erlands Point, the Court found that the clam beds there did not qualify as “existing beds on property owned or leased by Growers licensed by the State of Washington”, as set forth in § 6.1 of the Revised Shellfish Implementation Plan. C70-9213, Subproceeding 89-303, Dkt. # 31, p. 6 (May 28, 2004). The Suquamish Tribe was therefore entitled to exercise its treaty-based right to harvest clams from those tidelands.
Three years later, the Tribes, the State of Washington, the United States, and certain shellfish growers reached an agreement, formalized in a Settlement Agreement which was filed with the Court on June 20, 2007. C70-9213, Subproceeding 89-3, Dkt. # 14476. The significant aspect of this Agreement is that the Tribes agreed that upon the fulfillment of certain contingencies, “any and all shellfish on ‘covered tidelands’ ... are deemed as of the date of this Settlement Agreement to be ‘staked and cultivated by citizens’ for the purpose of implementing the Treaties ...” Settlement Agreement, ¶ 6A. The designation of the “covered tidelands” as “staked and cultivated” thus brought those *909 tidelands under the so-called Shellfish Proviso of the Stevens’ Treaties, which reserved to the Tribes the right of taking fish in common with all citizens of the Territory, “Provided, however, that they shall not take shellfish from any beds staked or cultivated by^ citizens.” United States v. Washington, 157 F.3d 630, 638 (9th Cir.1998).
Apparently relying on the designation of “covered tidelands” as “staked and cultivated” beds in the Settlement Agreement, the Trust denied the Suquamish Tribe access to tidelands leased by the Trust at Chico Bay. The Tribe filed a Request for Dispute Resolution regarding these tidelands on June 14, 2007, and requested a preliminary injunction to enjoin any party from harvesting the clams until the matter could be resolved. The Trust and the Tribe stipulated to such an injunction, and as the additional party Clam Acres had not appeared in opposition, the injunction was entered. Dkt. ## 9, 13. The Tribe now seeks summary judgment on the issue presented in the Request for Dispute Resolution; that is, whether the designated tidelands leased by the Trust at Chico Bay are subject to treaty harvest by the Tribe, and whether the Tribe’s proposal for organizing that harvest should be adopted.
In opposing the motion, the Trust first asserts that there are issues of fact as to whether it is entitled to intervene and participate in the Settlement Agreement. However, the Court has by separate Order granted the Suquamish Tribe’s motion to deny the Trust’s Notice and Request to Intervene in the Settlement Agreement. The Trust’s tidelands at Chico Bay therefore do not qualify as “covered tidelands” within the meaning of that Agreement. In the absence of such qualification, this matter, like the previous dispute between the Tribe and the Trust, is governed by the terms of the Amended Shellfish Implementation Plan (“the Plan”).
■ The Plan sets forth a specific procedure by which a shellfish grower and a Tribe with a treaty-based right to harvest naturally-occurring shellfish on tidelands owned or leased by that grower shall determine the Tribe’s allocation of shellfish. Paragraph 6.1 of the Plan applies to shellfish beds on tidelands controlled by a grower who was licensed by the State of Washington as of August 28, 1995, the effective date of the original Shellfish Implementation Plan. The Court determined in the prior dispute between the Trust and the Suquamish Tribe that as of the relevant date, the Trust did not possess a grower’s license for the Erlands Point tidelands. Subproceeding C89-303, Dkt. #31, p. 6. The Trust has submitted no evidence which would change that result for the Chico Bay tidelands. 2
Shellfish beds which were not controlled by a licensed grower as of August 28, 1995 are addressed in ¶ 6.3 of the Plan. That paragraph sets forth specific procedures for a grower to give notice to Tribes who might be affected by the grower’s aquatic farming activities on tidelands subject to that Tribe’s treaty harvest rights. Nowhere has the Trust submitted any evidence that it has complied with the procedures set forth in ¶ 6.3 of the Plan. Instead, the Trust has offered inadmissi *910 ble evidence purporting to demonstrate its efforts to develop some unspecified tidelands as commercial shellfish beds. Trust’s Response, Dkt. # 35, Exhibits A & B. At oral argument, the Trust argued that it is entitled to reap the fruits of its labor. However, ¶ 6.3 is crafted to ensure just that benefit to a shellfish grower. The Trust has failed to comply with the requirements of ¶ 6.3 of the Plan, and is not entitled to claim the benefits thereof.
CONCLUSION
The Trust has presented no evidence that would create a factual issue with respect to the Suquamish Tribe’s treaty-based right to harvest clams at the Trust’s Chico Bay tidelands. Nor has the Trust presented any evidence or argument as to why the Court should not adopt the Tribe’s proposal for proceeding with that harvest. Accordingly, the Tribe’s motion for summary judgment is GRANTED. The Court shall sign and file the proposed Order presented by the Tribe, setting forth a reasonable and orderly procedure by which the parties may proceed with the harvest.
ORDER GRANTING SUQUAMISH TRIBE’S MOTION FOR SUMMARY JUDGMENT RE: A & K TRUST TIDELANDS AT CHICO BAY
Subproce'eding No. 89-3-05
(June 13, 2008)
This matter comes before the Court on the Suquamish Tribe’s Motion for Summary Judgment Re: A & K Trust Tidelands at Chico Bay. The Court has considered the papers submitted and the arguments presented by the parties. The Court hereby GRANTS the Su-quamish Tribe’s Motion for Summary Judgment Re: A & K Trust Tidelands at Chico Bay. The Court hereby ORDERS as follows:
1. The Tribe and A & K Trust (the “Trust”), including Clam Acres or any other person acting on the Trust’s behalf, shall harvest and manage the Chico Bay tidelands (i.e., tax parcel numbers 052401-1-075-2000 and 322501-3-036-2000) on a rotational basis until further order of the Court or agreement by the parties. Under this rotational scheme, the parties shall collectively harvest up to 33% (up to 16.5% each) of the harvestable clam biomass annually.
2. Annual allocations of manila clams (“M”) and native littleneck clams (“NL”) under this rotational scheme for each harvest area through the end of 2010 are as follows:
Parcel 052401-1-075-2000
(portion not subject to July 20, 2007 DOH emergency closure)
Suquamish Tribe A&K Trust
2008 M 15,742pounds 13,042 pounds
2008 NL 2,107pounds 2,107 pounds
2009 M 15,742pounds 15,742 pounds
2009 NL 2,107poúnds 2,107 pounds
2010 M 15,742pounds 15,742 pounds
2010 NL 2,107pounds 2,107 pounds
Parcel 052401-1-075-2000
(portion subject to July 20, 2007 DOH emergency closure)
*911
Suquamish Tribe A&K Trust
2008M 2,154 pounds 2,154pounds
2008 NL 196 pounds 196 pounds
2009 M 2,154 pounds 2,154pounds
2009 NL 196 pounds 196 pounds
2010 M 2,154 pounds 2,154pounds
2010NL 196 pounds 196 pounds
Parcel 322501-3-036-2000
Suquamish Tribe A&K Trust
496 pounds 496 pounds 2008M
57 pounds 57 pounds 2008 NL
496 pounds 496 pounds 2009 M
57 pounds 57 pounds 2009 NL
496 pounds 496 pounds 2010 M
57 pounds 57 pounds 2010 NL
3. Absent some other agreement by the parties, the Tribe shall conduct a new clam population survey of the Chico Bay tidelands in the spring of 2011, and every third year thereafter, and future harvest allocations under this rotational scheme shall be calculated in accordance with such surveys.
4. The Tribe shall have the opportunity to immediately harvest its 2008 shares of the manila and native littleneck clams on the Chico Bay tidelands. The Trust, Clam Acres, and anyone acting on their behalf, shall not harvest any clams from the Chico Bay tidelands until the Tribe has completed its 2008 harvests or until five months have elapsed from the date of this Order, whichever comes first. The Tribe shall inform the Trust and WDFW of the dates that it plans to harvest as soon as practical, and shall promptly notify the Trust when it has completed the harvest of its allocation on any of the three harvest areas.
5.In future years, the parties shall schedule their harvests so as to account for spawning periods and DOH closures, and so as to accommodate the other party’s full and fair opportunity to conduct its harvests. Each party shall provide notice to the other party at least three (3) business days prior to harvest, each party may have a representative present for the other party’s harvests and “weigh-outs,” and each party shall promptly provide to the other party a report showing the quantities of clams harvested by date.
6. At least thirty (30) days prior to any proposed commercial shellfish harvest on tidelands owned, leased, or otherwise controlled by the Trust (wherever located, including but not limited to the Trust’s tidelands at Erlands Point, Phinney Bay, and elsewhere in Chico Bay), the Trust shall notify the Tribe (and any other affected treaty tribes). Prior to any such harvest; the Trust and the Tribe (and any other affected tribes) shall establish a plan that provides for the implementation of the Tribe’s (or tribes’) treaty right to 50% of the naturally-occurring shellfish on such tidelands. In the event the Trust provides a proper notice to the Tribe and other affected tribes under Section 6.3 of the Implementation Plan, the terms of Section 6.3 shall control.
7. The clerk is directed to enter judgment accordingly.
*912 ORDER ON RULE 60(B) MOTION TO REOPEN
Subproceeding No. 01-2
(September 2, 2008)
This matter is before the Court for consideration of a Rule 60(b) motion by the Samish Indian Nation 1 to reopen the judgment in U.S. v. Washington, C70-9213. Dkt. # 300. The earlier denial of this motion was reversed and remanded to this Court by the Ninth Circuit Court of Appeals. U.S. v. Washington, 394 F.3d 1152 (9th Cir.2005). The Court heard oral argument on October 10, 2007, and has thoroughly considered the arguments and memoranda of the parties, together with the lengthy record in this case. For the reasons set forth below, the Court has concluded that the motion to reopen the judgment must be denied.
BACKGROUND
This subproceeding represents the effort by the Samish Indian Nation (“the Samish”) to be recognized as a “Treaty Tribe” 2 and thus exercise treaty fishing rights alongside other such recognized tribes pursuant to U.S. v. Washington, 384 F.Supp. 312 (W.D.Wash.1974). In the previous Order denying the Rule 60(b) motion, the Court set forth the following factual statement, which is re-stated here as it sets the background for the present decision:
A. Treaty Fishing Rights
In 1970, the United States, on its own behalf and as trustee for seven Indian tribes, brought suit seeking an injunction requiring the State to protect those tribes’ share or runs of anadromous fish. Seven other tribes intervened as plaintiffs. In 1974, United States District Judge Boldt ruled that all fourteen tribes had treaty fishing rights under several Indian treaties, including the Treaty of Point Elliot, which entitled them to take up to fifty percent of the harvestable fish passing through their off-reservation fishing grounds. United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974) ("Washington I”). Washington I declared the treaty fishing rights of only those “14 Indian entities” that had participated as plaintiffs in that proceeding and that were defined as “Treaty Tribes” in the ruling. 384 F.Supp. at 405 . Washington I contemplated that additional Indian entities might become parties in the case if any such entitles demonstrated that is was “entitled to exercise fishing rights under the treaties construed herein within the Western District of Washington.” Id.
On September 20, 1974, shortly after Judge Boldt’s initial decision, the Samish Tribe, as well as the Duwamish, Snohomish, Steilacoom, and Snoqualmie Tribes, moved to intervene in United States v. Washington, to assert their own treatfy] fishing rights. Judge Boldt referred the issue of the Samish’s treaty status to Magistrate Judge Robert Cooper sitting as a Special Master. After a five-day trial, Magistrate Judge Cooper determined that the Samish was neither a treaty tribe nor a political successor to the signatory treaty tribe.
The Samish appealed this determination to Judge Boldt, who thereafter conduct *913 ed a de novo evidentiary hearing. The Samish submitted additional evidence to Judge Boldt, who heard argument in January 1977. Judge Boldt issued his decision in March 1979, ruling that the Samish were not a Treaty Tribe as defined in Washington I and that its members were not entitled to exercise treaty rights under the Treaty of Point Elliot. United States v. Washington, 476 F.Supp. 1101, 1111 (W.D.Wash.1979) (“Washington II ”). Judge Boldt found that the Samish Tribe was not a successor in interest to any treaty signatory and had not maintained an organized tribal structure. Id. at 1106 . Judge Boldt also concluded that the Samish were not entitled to exercise treaty rights because the Tribe was not “federally recognized” by the United States Department of Interior (DOI). Id. at 1111 .
The Samish appealed Judge Boldt’s ruling to the Ninth Circuit, arguing inter alia that Judge Boldt improperly adopted without substantial change the proposed findings and conclusions submitted by the United States. United States v. Washington, 641 F.2d 1368, 1371 (9th Cir.1981). The Samish also appealed Judge Boldt’s Finding of Fact No. 27, in which Judge Boldt found that the Samish had “not lived as a continuous separate, distinct and cohesive Indian cultural or political community.” 476 F.Supp. at 1105 . Because Judge Boldt had in fact adopted most of the United States’ proposed findings of fact and conclusions of law, the Ninth Circuit applied close scrutiny to the Samish’s claims. The Ninth Circuit concluded that Judge Boldt had applied an incorrect legal test in determining whether a tribe had treaty rights. Rejecting the notion that federal recognition or nonrecognition was dispositive, the Ninth Circuit instead stated that the “single necessary and sufficient condition for the exercise of treaty rights is” whether “a group of Indian descendants ... have maintained an organized tribal structure.” 641 F.2d at 1372 .
Applying this test to the record, the Ninth Circuit concluded “[ajfter close scrutiny, ... that the evidence supported [Judge Boldt’s] finding of fact” that the Samish had not functioned since treaty times as “continuous separate, distinct and cohesive Indian cultural or political communities].” Id. at 1373 . As for the effect of the Samish’s nonrecognition, the court stated that “[n]onrecognition of the tribe by the federal government ... may result in loss of statutory benefits, but can have no impact on vested treaty rights.” Id. The court, therefore, affirmed Judge Boldt because “the district court correctly resolved this question despite its failure to apply the proper standard.” Id. at 1374 . The Samish appealed this decision to the United States Supreme Court, which denied certiorari. 454 U.S. 1143 [ 102 S.Ct. 1001 , 71 L.Ed.2d 294 ] (1982).
By the early 1980’s, therefore, the Samish Tribe had failed to persuade at least three judicial bodies — Magistrate Judge Cooper, Judge Boldt, and the Ninth Circuit — that it was entitled to be a party to this case.
B. Federal Recognition Proceeding
In 1972, after Congress began conditioning eligibility for most programs benefit-ting Indians upon status as a federally recognized tribe, the Samish first sought federal recognition. See 25 U.S.C. §§ 450-450 (n). In 1978 the DOI [Department of Interior] published final regulations governing the procedure for official recognition of Indian Tribes. Apparently, the DOI took no action on the Samish’s original petition until after *914 the 1978 regulations were promulgated, and the Samish filed a revised petition under the new regulations in October 1979. Thereafter, the Bureau of Indian Affairs (BIA) conducted an independent inquiry into the Samish’s recognition petition. The recognition petition was denied first in 1982, when the Assistant Secretary for Indian Affairs first published a preliminary determination concluding that the Samish should not be recognized. Samish objected to this decision and submitted a response and additional information and, after several years of delay, the Deputy to the Assistant Secretary for Indian Affairs issued a final decision in 1987 denying federal recognition to the Samish. 52 Fed.Reg. 3709 (Feb. 5,1987).
In 1989, the Samish filed a federal action in this district, alleging that the BIA’s denial of its recognition petition violated the Tribe’s due process rights and that the Samish was the successor in interest to the treaty Samish Tribe for purposes of showing entitlement to federal recognition. Greene v. Lujan, No 89-645Z (W.D.Wash). The Tulalip Tribe sought to intervene in this case, believing that if Samish were to gain federal recognition, then treaty fishing rights would likely follow. Judge Zilly denied Tulalip’s in-tervenor application but permitted it to participate as amicus curiae. On an interlocutory appeal, the Ninth Circuit affirmed the denial of the Tulalip’s inter-venor application on the grounds that “the calculus for tribal treaty rights under Ninth Circuit law is separate and distinct from that for federal acknowledgment.” Greene v. United States, 996 F.2d 973, 976-77 (9th Cir.1993). Thus, the Ninth Circuit reasoned, Tulalip’s interest in the recognition proceeding did not rise to intervenor status since “[e]ven if [the Samish] obtain federal tribal status, [they] would still have to confront the decisions in Washington I and II before they could claim fishing rights.”
Id.
On the merits, Judge Zilly held that the Samish had been denied due process in the recognition proceedings and vacated the decision denying recognition and remanded the recognition petition to the DOI for formal adjudication under the Administrative Procedure Act (APA). February 25, 1992 Order, 1992 WL 533059 . The Ninth Circuit affirmed Judge Zilly’s due process ruling, requiring an APA due process hearing for the Samish. Greene v. Babbitt, 64 F.3d 1266 (9th Cir.1995).
On remand, Administrative Law Judge (ALJ) David Torbett of the DOI Office of Hearings and Appeals conducted an APA due process hearing on the Samish’s recognition proceeding. After an eight-day hearing, on August 31, 1995 Judge Torbett issued recommended findings of fact and conclusions of law in favor of Samish recognition.
In his recommended decision, ALJ Tor-bett found that the Samish met all seven mandatory criteria necessary for federal recognition as an Indian tribe. See, 25 C.F.R. § 83.7 (1993). Reviewing ALJ Torbett’s decision, the Assistant Secretary for Indian Affairs rejected some of his findings and conclusions, but ultimately ruled in favor of Samish recognition on November 8, 1995. The Samish appealed these rejections, and Judge Zilly reinstated the finding[s] of fact and conclusions of law that had been rejected and affirmed the Samish recognition decision. Greene v. Babbitt, 943 F.Supp. 1278, 1288-89 (W.D.Wash.1995 [1996]). Now, having achieved federal recognition, the Samish set out again [Note 4], pursuant to Rule 60(b)(6), to reopen the judgment in this case.
*915 [Footnote 4: An earlier, unrelated attempt to set aside the judgment in Washington II occurred on November 22, 1993, when three Tribes, • including the Samish, moved for relief under Rule 60(b)(6) on the grounds that Judge Boldt might have been mentally incompetent at the time he signed the final findings in the case. This court, on January 23, 1995, denied the motion on three grounds: (1) that courts should avoid [disturbing the public interest in] the finality of judgments; (2) that a ruling for the Tribes would open the floodgates to future challenges to judgments on grounds of judicial incompetence; and (3) the Tribes suffered no manifest injustice since the magistrate judge and the Ninth Circuit reached the same conclusion as Judge Boldt. The Ninth Circuit affirmed this court’s ruling United States v. Washington, 98 F.3d 1159 (9th Cir.1996).]
Dkt. # 68, pp. 2-8.
In the written opinion on the judgment which the Samish now seek to reopen, the Court set forth both specific and general findings of fact. U.S. v. Washington, 476 F.Supp. 1101 (W.D.Wash.1979). The general findings applied to five intervenor tribes who were at that time seeking Treaty Tribe status: the Duwamish, Samish, Snohomish, Snoqualmie, and Steilacoom tribes. As to these tribes, the Court made the following general findings:
(1)Article 2 of the Medicine Creek Treaty and Article 4 of the Point Elliott Treaty provided that the tribes and bands which were parties thereto agree to remove to and settle upon the reservations within one year after ratification of said treaties if the means were furnished them. In the years following the ratification of those treaties the United States did not enforce those provisions. A number of tribes or parts of tribes or bands which were parties to the treaties did not remove to the reservations and some Indians who did move later left the reservation, often returning to their native areas. Among the reasons for not removing to or remaining on the reservation were: (1) the reservations were too small or otherwise inadequate for the tribes and bands assigned to them; (2)the tribes or bands were not on friendly terms with others assigned to the reservation or with the people in whose territory the reservation was located; and (3) the reservation was too far from their traditional territory. The United States did not adopt or apply a policy of requiring the western Washington tribes or bands who were parties to the treaties to remove to or remain on the reservations. (PTO Part 2 P 3 ).
(2). A number of individual Indian people intermarried with non-Indians, did not accompany their respective tribes to the reservations but took up the habits of non-Indian life, and lived as citizens of the State of Washington in non-Indian communities. (Ex. USA-112; Tr. 10/29/75, 378-379)
(3). During the latter part of the 19th century and early part of the 20th century it was the policy of the United States Government to encourage the breaking up of Indian reservations and destruction of tribal relations and to settle Indians upon their own allotments or homesteads, acculturate and incorporate them into the national life, and deal with them not as nations or tribes or bands but as individual citizens. (PTO Part 2 P 4 ; Exs. USA-123 through 128; Annual Rept. Comm’r of Ind. Affairs, 1890, p. VI)
(4). This policy was officially changed in the 1930’s. (Exs. USA-129 and 130) The Indian Reorganization Act of June 18, 1934, 48 Stat. 984 , was directed at *916 implementing a policy of organizing and strengthening Indian tribal entities so as to manage their own affairs and to promote their civic and cultural freedom and opportunity and their own economic rehabilitation. By the Indian Reorganization Act, the descendants of the treaty tribes associated with most of the reservations voted to reorganize pursuant to that Act as Indian tribes and political entities under federally-approved constitutions and bylaws having express and implied governmental and proprietary powers and with original inherent sovereign tribal powers preserved to the extent not restricted by federal law. Except for a brief policy in the 1950’s of encouraging termination of federal supervision and administration of Indian affairs, the policy of encouraging tribal organization and greater self-management of internal affairs has continued and increased. (PTO Part 2 P 4 ; Ex. USA-130 pp. 418-421; Tr. 12/6/74, 212-214)
(5). In the period around 1916-1919 the Bureau of Indian Affairs caused an enumeration and enrollment to be made of unattached Indians in western Washington arranged by families and tribes. Special Indian Agent Charles E. Roblin was assigned to make this enumeration and enrollment. He found that a large number of persons claiming enrollment and allotment as Indians were descendants of Indian women who married early non-Indian pioneers and founded famines of mixed bloods. He reported that in many cases these applicants and families had never associated or affiliated with any Indian tribe for several decades or even generations. (Ex. USA-112)
(6). Neither Congress nor-the Executive Branch has prescribed any standardized definition for either the term “Indian” or “Indian tribe” in terms of the special federal relationships with Indians. (Ex. USA-110, pp. 138-139) The term “Indian” is used in several contexts including biological descent, cultural identity and legal status. (Id.) The term “tribe” is ■ most commonly used in two senses, an ethnological sense and a political sense although it also may be used in a social sense. (Federal Indian Law United States Department of the Interi- or (1968) p. 454)
(7). As a major aspect of the new federal Indian policy adopted in the 1930’s Congress enacted the Indian Reorganization Act of 1934. One of its major purposes was to authorize and facilitate the reorganization and revitalization of Indian tribal political entities. (Ex. T-22; Exs. USA-129 and 130) While existing recognized tribes did not have to accept the Act, and many did not, it did provide a means by which tribes which had lost their political authority and recognition could regain it.
(8). The legislative history of the Indian Reorganization Act of 1934 shows that in determining who was to be considered an Indian for the purpose of such tribal reorganization Congress rejected the Department of the Interior’s recommendation that persons who were not members of recognized tribes then under federal jurisdiction * 1104 or their on-reservation descendants could participate in such reorganization if they were of one-fourth or more Indian blood. Instead Congress required that such persons be of one-half or more Indian blood. Representative Howard, the House sponsor and floor leader for the bill, explained during debate that the definition (now 25 U.S.C. § 479 ) defines who shall be classed as Indians for the purposes of the Act. He said:
“In essence, it recognizes the status quo of the present reservation Indians and *917 further includes all other persons of one-fourth or more Indian blood. The latter provision is intended to prevent persons of less than one-fourth (later changed to one-half) Indian blood who are not already enrolled members of a tribe or descendants of such members living on a reservation from claiming the financial and other benefits of the act. Obviously the line must be drawn somewhere or the Government would take on impossible financial burdens in extending wardship over persons with a minor fraction of Indian blood.” (Ex. T-22; Congressional Record, June 15, 1934, p. 12056)
(9). As used in (a) these Findings Nos. 1 to 59, inclusive, (b) in the Findings and Judgment awards of the Indian Claims Commission referred to in said Findings and in the requirements for the preparation of rolls for distribution of said Judgment awards, and (c) in the membership requirements of each of these Interve-nor entities, the terms “descendant” or “persons of Indian blood” means any person whose lineage includes any ancestor who was an Indian or a member of the referenced Indian tribe, community or other group. This is also true of the term “persons of Indian blood” unless a particular minimum degree of such blood or descent is specifically prescribed.
(10). The Court of Claims has determined and held that the Indian Claims Act of 1946, 60 Stat. 1049 , allows claims to be prosecuted under that Act on behalf of Indian tribes, bands or communities that have ceased to exist as such, if brought as ,a representative action on their behalf by a group whose members can be identified as members or descendants of members of a previously existing tribe. (Thompson v. United States, 122 Ct.Cl. 348 (1952)).
(11). These five Intervenor tribes are not the beneficial owners of the Judgments that have been awarded under the Indian Claims Act on the claims prosecuted by them. Such Judgment Awards of the Intervenor Duwamish, Samish, Snohomish, and Snoqualmie tribes have been or will be distributed, pursuant to Acts of Congress dealing with such judgments, on a per capita basis to persons determined by the Secretary of the Interior to be descendants of members of the treaty-time tribes. ( 80 Stat. 910 , 85 Stat. 83 , 87 Stat. 466 , 41 F.R. 5241 ). Distribution of the Steila-coom award has yet to be determined. ( 87 Stat. 466 ; Ex. USA-107, p. 4)
(12). None of the five Intervenor entities whose status is considered in these Findings is at this time a political continuation of or political successor in interest to any of the tribes or bands of Indians with whom the United States treated in the treaties of Medicine Creek and Point Elliott.
Id. at 1102-04 .
The Court’s specific factual findings underlying denial of the Samish request for Treaty Tribe status were set forth as follows:
Specific Findings as to Intervenor Samish Tribe
(22). The Intervenor Samish Indian Tribe (herein referred to as the Interve-nor Samish Tribe) is composed primarily of persons who are descendants in some degree of Indians who in 1855 were known as Samish Indians and who were party to the Treaty of Point Elliott. The 1855 Samish were not named in the treaty but were assigned, for the purpose of including them in the treaty, to the Lummi signer, Chow-its-hoot, who signed the treaty for the Lummi and the other northern bands. (PTO Part 2 PP 1 and 2; Ex. USA-75 pp. 8-9) Official estimates of the number of Samish at *918 treaty times varied from about 98 to about 150 persons. (Ex. USA-75 p. 13)
(23). Pursuant to the treaty most of the Samish people initially moved to the Lummi Reservation. Later others moved to the Swinomish Reservation. The present-day Lummi and Swinomish Reservation tribes include descendants of the 1855 Samish Indians. (Ex. USA-75 pp. 2,14-16; Ex. USA-30; Ex. USA-74, pp. 3-4)
(24). ' The Intervenor Samish Tribe prosecuted a claim against the United States before the Indian Claims Commission in Docket No. 261 which resulted in a monetary judgment award. (Ex. USA-111) This award will be distributed per capita to the descendants of the Samish Tribe of Indians as it existed in 1859, born on or prior to and living on the effective date of the plan prepared by the Department of the Interior for the use and distribution of judgment funds. ( 41 F.R. 5140 , Feb. 4, 1976).
(25). The Intervenor Samish Tribe exercises no attributes of sovereignty over its members or any territory. It is not recognized by the United States as an Indian governmental or political entity possessing any political powers of government over any individuals or territory. None of its organizational structure, governing documents, membership requirements nor membership roll has been approved or recognized by the Congress or the Department of the Interior for purposes of administration of Indian affairs. (PTO Part 2 P 2 ) Said Intervenor has adopted a constitution and bylaws pursuant to which it has a tribal council and a tribal chairman and purports to operate as an identifiable and distinct entity on behalf of its members. It claims 549 members. (Ex. SAM-2; Ex. SA-79)
(26). The Intervenor Samish Tribe’s constitution provides that its membership shall consist of all persons of Indian blood whose names appear on the official membership roll of the Samish Tribe to be dated June 1, 1975, as prepared by the Secretary of the Interior, and all persons born to any member of the Samish Tribe. (Exs. SA-M-2 and SAM-3; Tr. 10/29/75, 267) No such roll is now in existence. (Exs. USA-M-16 and USA-107, p. 3) There is no requirement of specific minimum blood quantum either as to Samish blood in particular or Indian blood in general. (Exs. SA-M-2 and SA-M-3; Tr. 10/29/75, 273-274) The Intervenor’s membership roll contains 549 persons many of whom are of only l/16th degree Indian blood. Two have only l/32nd Samish blood. (Ex. SA-79) The tribe does not prohibit dual membership and at least one member is an officer of the Lummi Tribe. (Tr. 10/29/75, 273)
(27). The members of the Intervenor Samish Tribe and their ancestors do not and have not lived as a continuous separate, distinct and cohesive Indian cultural or political community. The present members have no common bond of residence or association other than such association as is attributable to the fact of their voluntary affiliation with the Inter-venor entity. (Ex. USA-107; Tr. 10/29/75, 232-235)
(28). The Intervenor Samish Tribe has had dealings with agencies of the United States, the State of Washington, and local governments and with private organizations and Indian tribes, but said dealings were not different in substance from those engaged in by any social or business entity. (Ex. USA-107 pp. 5-7)
(29). The Intervenor Samish Tribe is not an entity that is descended from any of the tribal entities that were signatory to the Treaty of Point Elliott.
*919 (30). The citizens comprising the Inter-venor Samish Tribe have not maintained an organized tribal structure in a political sense.
Id. at 1105-06 .
In moving to reopen, the Samish argue that the 1996 federal recognition constituted an “extraordinary circumstance” which would warrant reopening the judgment and a re-examination of their right to Treaty Tribe status. Their motion to reopen initiated this subproceeding, as a part of the ongoing United States v. Washington, C70-9213. The motion was opposed by nine of the twenty-two tribes which had previously been recognized as Treaty Tribes, as well as by the United States. On December 19, 2002, in the Order which is quoted in part above, the Honorable Barbara J. Rothstein denied the motion to reopen. Dkt. # 68. The denial was based upon the separate conclusions that the federal recognition did not constitute extraordinary circumstances as required by Rule 60(b), and that finality concerns weighed against re-opening the judgment. Id.
The Ninth Circuit reversed this decision, finding that the 1996 federal recognition of the Samish “is an extraordinary circumstance that warrants setting aside the judgment in Washington II.” 394 F.3d at 1161 . The appellate court also noted that this court’s finality concerns were somewhat speculative and therefore insufficient to provide an independent basis for denial of the motion to reopen. Id. at 1162 . The matter was thus remanded for further proceedings consistent with that opinion.
DISCUSSION
I. Standards for Rule 60(b) Motion
Federal Rule of Civil Procedure Rule 60(b) provides that “[o]n motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons” F.R.Civ.P. 60(b). There follows a list of five specific grounds, together with a sixth nonspecific ground: “any other reason justifying relief from the operation of the judgment.” F.R.Civ.P. 60(b)(6). The Samish have brought their motion under this “catchall” provision, which applies when the reason asserted'for relief is not covered by any other provision set forth in Rule 60(b). As stated in the remand order, the section should be used “sparingly as an equitable remedy to prevent manifest injustice,” and is to be used “only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment.” 394 F.3d at 1158 , citing United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.1993). Thus, “a party seeking to reopen a case under Rule 60(b)(6) ‘must demonstrate both injury and circumstances beyond his control that prevented him from proceeding with the prosecution or defense of the action in a proper fashion.’ ” Id., quoting Community Dental Services v. Tani, 282 F.3d 1164, 1168 (9th Cir.2002). Further, as stated in an earlier order regarding a separate motion to reopen these proceedings brought by other tribal entitles, a judgment may be set aside “only for reasons that would have prevented entry of the judgment in the first place, had the reasons been known at the time the judgment was entered.” United States v. Washington, 98 F.3d 1159, 1164 (9th Cir.1996) (Circuit Judge Kozinski, concurring).
II. Extraordinary circumstances
In the remand order, the appellate court found “extraordinary circumstances” in the following events:
In light of the government’s “excessive delays and ... misconduct” in withholding of recognition from the Samish, a *920 circumstance beyond their control; the government’s position in Washington II that federal recognition was necessary and that future federal recognition might justify revisiting the treaty rights issue; and the district court’s erroneous conclusion that nonrecognition was decisive and wholesale adoption of the United States’ boiler-plate findings of fact in Washington II, we conclude that the Samish were effectively prevented from proving their tribal status “in a proper fashion.”
U.S. v. Washington, 394 F.3d at 1159 (citing to the district court’s language in Greene, where it noted that the Samish’s “long journey for recognition has been made more difficult by excessive delays and governmental misconduct.” Greene v. Babbitt, 943 F.Supp. at 1288-89 ).
The question, then becomes whether these extraordinary circumstances justify reopening judgment under Rule 60(b) so that the Samish may present their case for Treaty Tribal status. The Samish argue that the Ninth Circuit’s remand order amounts to a per se determination that they are entitled to such status. Certainly, the following statement appears to support that conclusion:
As the Samish are a signatory tribe and have proved the single necessary and sufficient condition for the exercise of treaty rights, the res judicata effect of Washington II is all that is keeping the Samish from pursuing its treaty rights.
394 F.3d at 1160 . However, this language appears to conflict with prior repeated assurances given to the Treaty Tribes that the legal bases and processes leading to federal recognition and Treaty Tribe status are “fundamentally different.” Greene v. Babbitt, 64 F.3d 1266, 1270 (9th Cir.1995) (Greene II); citing Greene v. United States, 996 F.2d 973 (9th Cir.1993) (Greene I). When the Tulalip Tribes sought to intervene in the Samish recognition proceedings to protect their interests, particularly their treaty fishing rights, the appellate court affirmed the district court’s denial of the request, assuring the Treaty Tribes that “[fjederal recognition does not self-execute treaty rights claims.” Greene v. United States, 996 F.2d 973, 977 (9th Cir.1993) The appellate court further noted that “the Tulalip’s interest in preserving the favorable effects of stare decisis [of Washington II ] is too speculative to warrant intervention,” because, “[a]s we just said, the Samish may not gain fishing rights from federal recognition alone.” Id. Thus, although it was denied intervenor status, the Tulalip Tribe was allowed to appear as amicus curiae
In a later appeal by the Secretary of the Interior in the same proceedings, the appellate court provided an extensive review of the concept that federal recognition and Treaty Tribe status are separate and distinct:
The Tulalip Tribe has participated in this litigation because of concern that recognition of the Samish as a Tribe could lead to Samish eligibility for treaty fishing rights in already over-fished fisheries. The district court held that the treaty rights adjudicated in Washington II and the tribal recognition leading to government benefits for individual Samish are distinct issues.
In this appeal, the Tulalip Tribe emphasizes that in the petition for recognition, the Samish Tribe has not claimed to be any tribe other than the historical Samish Tribe that was party to the Treaty of Point Elliot. To the extent that the Samish rely upon historical roots in this litigation, the roots are probably the same as those they posited in Washington II. However, other decisions of this court demonstrate that the legal issue *921 and the factual issue, as well as the stakes, are very different.
We specifically recognized the distinctions in United States v. Washington, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086 , 96 S.Ct. 877 , 47 L.Ed.2d 97 (1976) (Washington I), in which we held that a tribe’s recognition or lack of recognition by the Secretary of the Interior does not determine whether the tribe has vested treaty rights. We said:
Nonrecognition of the tribe by the federal government and the failure of the Secretary of the Interior to approve a tribe’s enrollment may result in loss of statutory benefits, but can have no impact on vested treaty rights. Whether a group of citizens of Indian ancestry is descended from a treaty signatory and has maintained an organized tribal structure is a factual question which a district court is competent to determine.
Id. at 692-93 . Once a tribe is determined to be a party to a treaty, its rights under such a treaty may be lost only by unequivocal action of Congress. Id. at 693 . Thus, the recognition of the tribe for purposes of statutory benefits is a question wholly independent of treaty fishing rights.
We further recognized the distinction between treaty fishing rights and tribal recognition in Washington II where we held that the district court had erred in concluding that only federally recognized tribes may exercise treaty rights. We nevertheless affirmed denial of treaty rights on the independent factual finding' of insufficient continuous political and cultural cohesion. See, 641 F.2d at 1372-74 .
Our decision in Greene v. United States, 996 F.2d 973 (9th Cir.1993) can leave no serious doubt that our court regards the issues of tribal treaty status and federal acknowledgment as fundamentally different. We there held that the Tulalip Tribe was not entitled to intervene in this very litigation. We did so because the Tulalip’s interest in preventing the Samish from gaining treaty fishing rights was not affected by this litigation, involving federal tribal recognition or, as it is termed in the applicable regulation, “acknowledgment.” See, e.g., 25 C.F.R. § 83.2 (acknowledgment of tribal existence a prerequisite to the federal protection, services and benefits available to Indian tribes). In discussing the difference between the Samish seeking federal acknowledgment and treaty fishing rights, we said in Greene:
We recognize that the two inquiries are similar. Yet each determination serves a different legal purpose and has an independent effect. Federal recognition is not a threshold condition a tribe must establish to fish under the Treaty of Point Elliott.... Similarly, the Samish need not assert treaty fishing rights to gain federal recognition.
Greene v. Babbitt, 64 F.3d at 1270 -71 (quoting Greene, 996 F.2d at 976-977 ).
The Court has quoted this section at length, to illustrate the difficulties that have arisen from the following language in the order of remand:
Indeed, we have never held that recognition of a tribe — as opposed to nonrecognition — is irrelevant to its exercise of treaty right, despite some dicta to the contrary. See, Greene v. Babbitt, 64 F.3d at 1270 (incorrectly asserting that in Washington I “we held that a tribe’s recognition or lack of recognition by the Secretary of the Interior does not determine whether the tribe has vested treaty rights”).
U.S. v. Washington, 394 F.3d at 1158 . The extensive discussion in Greene of the *922 historical background, and the repeated separation of treaty status from federal recognition in four different appellate decisions should not be written off as simply “dicta.” See, Washington I, 520 F.2d at 692-93 ; Washington II, 641 F.2d at 1372-74 ; Greene I, 996 F.2d at 976-77 ; Greene II, 64 F.3d at 1270-71 .
However, some reconciliation of this statement with the appellate court’s own earlier pronouncements on the possible effect of federal recognition can be found in the court’s reference back to this section in Washington III;
We have defined a single necessary and sufficient condition for the exercise of treaty rights by a group of Indians descended from a treaty signatory: the group must have maintained an organized tribal structure.
This single condition reflects our determination that the sole purpose of requiring proof of tribal status is to identify the group asserting treaty rights as the group named in the treaty. For this purpose, tribal status is preserved if some defining characteristic of the original tribe persists in an evolving tribal community.
United States v. Washington, 641 F.2d at 1372 -73 (citing United States v. Washington, 520 F.2d at 693 ). Portions of this section — the first and third sentences— were quoted in the order of remand. 394 F.3d at 1158 . This section clarifies that the “necessary and sufficient” condition for the exercise of treaty rights is not federal recognition in and of itself, but rather the finding of “an organized tribal structure” which has been maintained by “a group of Indians descended from a treaty signatory.” Id.
Judge Boldt’s decision, above, specifically found that “the citizens comprising the Intervenor Samish Tribe have not maintained an organized tribal structure in a political sense.” U.S. v. Washington, 476 F.Supp. 1101, 1106 . The Samish necessarily seek by this motion to reopen the judgment in order to challenge this factual finding and prove it wrong. This is so because, as set forth above, the fact of federal recognition is not itself determinative of treaty status. Thus, the finding of extraordinary circumstances in the federal recognition does not of itself justify granting the Samish motion to reopen; the Court must proceed to address other factors in the Rule 60 equation. These, as determined by the Court in its Order dated February 28, 2006, are issues of timeliness and equitable considerations. Dkt. #158.
III. Timeliness
The Treaty Tribes assert that the Rule 60(b) motion is untimely, because it was not filed within a reasonable time after the issuance of a final decision in the federal recognition proceedings. The final decision in the recognition proceedings was signed by Assistant Secretary Ada Deer on November 8, 1995. 3 As described above, the Samish returned to the district court seeking to reinstate certain factual findings that had been rejected by Assistant Secretary Deer. The Court’s decision on that issue was filed October 15, 1996. Greene v. Babbitt, 943 F.Supp. 1278 (W.D.Wa.1996). The motion to reopen the judgment was not filed until December 13, 2001, 4 six years after Assistant Secretary Deer issued her final decision.
*923 A Rule 60(b)(6) motion must be brought within a reasonable time. F.R.Civ.Proc. 60(c)(1). For motions brought under Rule 60(b)(1), (2), or (3), based upon mistake or excusable neglect, newly discovered evidence, or fraud or misconduct, the motion must be brought within one year of the judgment sought to be vacated. Id. However, this time limit does not expressly apply to motions brought under the catchall provision of Rule 60(b)(6). Thus, the timeliness of a Rule 60(b)(6) motion is a matter within the district court’s discretion, considering the facts of the case. United States v. Holtzman, 762 F.2d 720, 725 (9th Cir.1985). The Court may consider not only the length of the delay, but also whether the movant has shown good cause for the delay, and whether other parties have been prejudiced thereby. In re Pacific Far East Lines, Inc., 889 F.2d 242 , 249 (9th Cir.1989).
The Treaty Tribes assert that the Samish have shown no good cause for the delay, because the tribe had all the legal resources, as well as sufficient funds, to seek reopening in late 1995, immediately after Ada Deer’s final decision was rendered. Instead, the Samish chose to use available legal resources to return to court in Greene to re-litigate the matter of the findings, rather than proceed immediately to seek re-opening the judgment here. And once they succeeded in their quest in Greene, they delayed another three years before filing the original motion to reopen in late 2001.
In response to these arguments, the Samish argue that they “raised the subject of restoring its treaty rights at every available opportunity since re-recognition in 1996, repeatedly sought BIA assistance and financial aid in bringing an action to restore its treaty rights, and brought this Rule 60(b) motion within a short time after finally obtaining financial resources necessary to fully research, prepare, and file this motion.” Supplemental Brief of Samish Indian Nation, Dkt. #236, p. 11-12. They explain that while they had legal counsel during the recognition proceedings, such counsel worked pro bono or received limited compensation from the grants, and ended their representation “[o]nce Samish recognition was finalized in late 1996.” Reply Brief of Samish Indian nation, Dkt. # 259, pp. 16-17.
These arguments fail to demonstrate good cause for the delay. First, the Samish nowhere assert that they tried to secure pro bono representation for their pursuit of treat rights, as they did for tribal recognition proceedings, nor have they demonstrated why they could not do so. The Court finds, under the circumstances presented here, that neither lack of counsel nor lack of funds to pay counsel is an adequate excuse for the delay in filing.
Further, the Samish argument fails to account for the year that passed between Assistant Secretary Deer’s November 1995, final decision, and the initiation of their effort to secure government funding in late 1996. Their assertion of the 1996 date is based on their assumption that they could not pursue treaty rights based on the 1995 final decision on recognition, but necessarily had to first secure reinstatement of the ALJ’s factual findings which had been deleted by Assistant Secretary Deer. They assert that the reinstated findings were “an essential component of the Samish Tribe’s recognition,” and that “[t]he Court’s decision to reinstate the *924 factual findings requested by the Samish 5 is proof’ that the Court agreed. Reply Brief, Dkt. # 259, p. 5 n. 4. However, this argument mischaracterizes the Court’s decision in Greene. The Court noted that the rejected findings of fact were “of vital importance to the Samish,” not that they were essential to recognition. Greene, 943 F.Supp. at 1283 . The Court described the rejected findings as ones that “would be favorable to the Samish in connection with their eligibility for benefits under federal law” and the resulting injury as the potential for “preclusive effect in future litigation concerning Samish membership, claims to tribal territory, and possible government liability for past benefits.” Id. at 1284 . Conspicuously absent is any mention of the possible impact on treaty rights, an omission which appears deliberate in light of the Greene court’s careful separation of treaty fights and federal recognition processes.
The basis of the Greene court’s decision to reinstate the rejected findings was the government misconduct that led to the rejection of the ALJ’s findings, not the necessity of those findings to the Samish pursuit of treaty rights. Id. at 1284-85. The Court therefore rejects the Samish argument that their return to court in Greene to secure reinstatement of the deleted ALJ findings was a necessary step to be taken before pursuit of their treaty rights. Instead, the Court regards this as a tactical choice or litigation strategy, and not a reasonable justification for delay.
Courts have found delays of four years not unreasonable when extraordinary circumstances were presented. Holtzman, 762 F.2d at 725 , citing Washington v. Penwell, 700 F.2d 570, 572-73 (9th Cir.1983). On the other hand, delays of two years, six years, or even twenty-two months have been found unreasonable in the absence of unreasonable circumstances. In re Hammer, 940 F.2d 524, 526 (9th Cir.1991) (two years); Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir.1981) (six years); Morse-Starrett Products Co. v. Steccone, 205 F.2d 244, 249 (9th Cir.1953) (twenty-two months). While each case must be considered in light of the individual facts, there is a common thread of finding delays of two years or more unreasonable where no extraordinary circumstances are presented. The Court finds no extraordinary circumstances have been advanced here to justify the delay, regardless whether that delay is considered to be five years or six. As succinctly stated by the Ninth Circuit Court of Appeals in a case involving a defense of laches, “equity aids the vigilant.” Danjaq LLC v. Sony Corp., 263 F.3d 942 (9th Cir.2001).
As for prejudice to other parties, the Treaty Tribes have adequately demonstrated prejudice that has resulted from the Samish delay in filing their Rule 60(b). This Court has issued numerous decisions in ongoing subproceedings in this case, particularly in the shellfish subproceed-ings, since November 8, 1995. If the Rule 60(b) motion were granted, the Court’s rulings in many of these subproceedings would be implicated, causing uncertainty for the Treaty Tribes and their fishing and shellfishing operations.
Under the facts of this case, the length of the delay, the resulting prejudice in impact upon the interim decisions in sub-proceedings in this case, and the absence of good cause shown, all lead the Court to find the length of delay unreasonable, and the'Rule 60(b) motion untimely.
*925 IV. Equitable Considerations
In asking the Court to consider equitable factors in deciding the motion to reopen, the Treaty Tribes have invoked the well-established principle that Rule 60(b) should be used “sparingly as an equitable remedy to prevent manifest injustice.” U.S. v. Alpine Land and Reservoir Co., 984 F.2d at 1049 . They call upon the age-old maxim that “he who comes into equity must come with clean hands,” and list a number of examples Samish actions which they assert constitute unclean hands. Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814 , 65 S.Ct. 993 , 89 L.Ed. 1381 (1945). This doctrine is more than a “mere banality”; it is a “self-imposed ordinance that closes the doors" of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.” Id. The Court has ruled previously that equitable considerations had been raised earlier in these proceedings but had not been addressed, and thus were properly before the Court for consideration on the merits. Dkt. # 158.'
The Treaty Tribes have advanced a number of actions which they assert constitute inequitable behavior on the part of the Samish. Treaty Tribes Response Brief, Dkt. # 256, pp. 15. They also contend that the Samish have changed their position on important questions such as the relation between federal recognition and treaty rights, and should be barred by the doctrine of judicial estoppel from taking inconsistent position. Treaty Tribes Response Brief, Dkt. # 256. pp. 15-29. As set forth below, the Court finds sufficient grounds in the Samish inequitable conduct to weigh against granting the Rule 60(b) motion, and thus does not reach the estop-pel question.
The Treaty Tribes’ equitable argument is based on the conduct of the Samish in seeking reinstatement of the ALJ’s findings 6 in Greene, together with subsequent arguments based on that reinstatement. The essence of the Treaty Tribes’ complaint is that the Samish succeeded in establishing a revised version of the findings, one more favorable to them, instead of Judge Torbett’s original findings. The Treaty Tribes refer to the Samish version of the findings as “faux” findings. These “faux” findings were cited by the Ninth Circuit Court of Appeals in its Order of Remand to this Court, and may have been in part a basis for that decision. U.S. v. Washington, 394 F.3d at 1160 .
The two findings at issue, as they were stated by ALJ Torbett, are set forth below.
The Noowhaha tribe and the Samish were at one time different tribes. Dr. Suttles and Dr. Hadja testified that the two tribes had combined probably around 1850 and that they had been one tribe since that time. This conclusion of Dr. Suttles and Dr. Hadja is controverted by the Defendants but the undersigned is convinced that the conclusions drawn by these two witnesses are sound.
Recommended Decision of ALJ Torbett, p. 22 (found in C89-645TSZ, Dkt. # 347-5, p. 56). This finding was rejected by Assistant Secretary Deer in her Final Decision:
The ALJ’s finding that the Noowaha and the Samish combined in pre-treaty times is rejected (recommended decision 22). A review of the specific findings of fact in the recommended decision (find *926 ings 63 and 67), the testimony of the plaintiffs witnesses, and their writings, which form part of the administrative record of this case, reveals that by “combined” these individual meant that the two tribes formed an alliance in pre-treaty times (cited in Def. Brief 149). The Department has never objected to this characterization of the relationship between the two tribes in pre-treaty times. However, a political alliance does not meet the requirements of criterion 88.7(e) for descent from a historical tribe or from tribes which “combined into a single autonomous political unit” (emphasis added).
In addition, the Federal district court in United States v. Washington, No. 9213, Subproceeding 89-3 (W.D.Wash) (Shellfish) held that the present Upper Skagit Tribe is the successor to the historical Noowhaha. The district court made specific findings concerning the incorporation of Noowhaha into the Upper Skagit. These findings are consistent with the Department’s previous findings concerning the Noowhaha which were that many Noowhaha joined the Upper Skagit Tribe and that the Upper Skagit had been considered to represent the Noowhaha in the past, although some Noowhaha families moved to the Swi-nomish and Lummi Reservations (ASIA 1982a, 1982b, 1987). The Department reaffirms that the present Upper Skagit Tribe is the successor to the historical Noowhaha.
Previously, the Indian Claims Commission, in its March 11, 1958, opinion concerning the claim of the Samish in docket 261, rejected the Samish’s contention there was a merger between the Samish and the Noowhaha tribe at the time of the Point Elliott Treaty of 1855 (Indian Claims Commission 1958).
Final Decision, pp. 12-13, found in 89-645TSZ, Dkt. # 347-6, p. 14.
In the second finding at issue here, ALJ Torbett stated as follows:.
Dr. Hajda explained that, although many Samish Indians had held public office on the Lummi and Swinomish Reservations, they continued to consider themselves as Samish and participate in Samish activities. She compared this to American Indians who had served in the U.S. armed forces, without considering themselves any less Indian as a consequence, and to the situation of the Welsh (her own ancestry), who participated actively in British politics but fiercely retained their own distinct national identity. While individual members of Samish families living today on reservations, such as the Edwards, may have given up their Samish identity, Dr. Hajda felt that on the whole they had not. Samish leaders living at Swinomish were active in Swinomish affairs as a way of gaining personal prestige, and not as a declaration of Swinomish identity.
Finding 169, Appendix B p. 69, found at 89-645TSZ, Dkt. # 347-5, p. 100 (internal citations to administrative record omitted). IP the Final Decision, all of this finding after the very first sentence was rejected by the Assistant Secretary, without explanation. Final Decision, p. 35, found at 89-645TSZ, Dkt. # 347-6, p. 36.
After the Final Decision was issued, the Samish returned to court in Greene to ask that the original ALJ findings be reinstated. They demonstrated that there had been inappropriate ex parte contact between the Assistant Secretary and government lawyer Scott Keep. In granting the Samish motion to reinstate the ALJ’s findings, the Court found as follows:
The ex parte communications between the decision maker, Assistant Secretary Ada Deer, and the Department’s lawyer, *927 Scott Keep, violated the Administrative Procedure Act, the Samish Tribe’s due process rights under the Fifth Amendment, and this Court’s Order incorporating the terms of the Joint Status Report. Because the Bureau of Indian Affairs has repeatedly and consistently disregarded the rights of the Samish and caused extraordinary delay in the processing of the Samish’s claims, the Court finds that it should grant relief without remand to the agency. The appropriate remedy under the unique circumstances of this case is to reinstate the three contested findings of the Administrative Law Judge that were arbitrarily rejected by the decision maker after her ex parte meeting with the government’s lawyer.
Greene, 943 F.Supp. at 1289 . The Court also found Mr. Keep in contempt of Court, but upon reconsideration that finding was deleted.
The issue of the “faux findings” arises from the following language late in the Greene decision:
Reinstatement of Contested Findings by the Court
The Samish seek to have the Court reinstate three particular findings of the ALJ that were rejected by the Assistant Secretary [FN 13]. They argue that these proposed findings were necessary to the tribal recognition process. Plaintiffs contend that the first finding justifies including in the plaintiffs’ tribe members of several families which are of Noowhaha, rather than Samish decent [sic]; the second finding establishes a necessary basis for the plaintiffs to continue to assert interests, as a tribe, in the traditional territory of the Samish; and the third finding goes to the potential liability of defendants, as a matter of the Federal-Indian tribe relationship, for wrongfully denying plaintiffs benefits and generating twenty years of administrative proceedings and litigation.
FN 13. The three proposed findings that were rejected by the Assistant Secretary were as follows:
(A) a substantial part of the Noowh-aha tribe merged historically with the Samish, such that the present-day Samish Tribe may have interests in traditional Noowhaha territory which derive through these Noowhaha family lines (see Final Determination at 12-13, 32);
(B) the Samish family lines that settled on the Swinomish Indian Reservation did not relinquish their Samish affiliation, so there was no historical merger of the Samish with the Swi-nomish (see Final Determination at 35); and
(C) the omission of the Samish from a list of tribes prepared by the Defendants in the 1960s was neither based on actual research, nor was it intended to be used as the basis for determining which Indian groups are to be recognized by the United States (see Final Determination at 16, 38-39).
Rather than remand to the Department, the Court reinstates the contested findings. Failure to do so would subject the Samish to relitigation of issues already decided in their favor by the Administrative law Judge and improperly rejected by Assistant Secretary Deer. That would be an unacceptable outcome under all the circumstances of this case. Administrative Law Judge Torbett conducted a thorough and proper hearing on the question of the Samish’s tribal status, and made exhaustive proposed findings of fact after considering all the evidence and the credibility of the witnesses. Ada Deer, the decision maker, arbitrarily and in violation of clearly established law rejected those proposed *928 findings and inserted new findings drafted by Mr. Keep. Under these limited circumstances, where the agency has repeatedly demonstrated a complete lack of regard for the substantive and procedural rights of the petitioning party and the agency’s decision maker has failed to maintain her role as an impartial and disinterested adjudicator, it is appropriate for this Court to “use its equitable power to order relief tailored to the situation.” In this case, the government should be bound by the findings of the Administrative Law Judge, which were prepared after all parties had an opportunity to be heard. The ALJ carefully considered and weighed all the evidence, including the testimony of the parties’ witnesses, and made findings consistent with the evidence. Assistant Secretary Deer’s ultimate rejection of the findings was based solely on improper ex parte contacts with one of the parties’ lawyers. Under these circumstances, reinstatement of the rejected findings is the appropriate remedy.
Greene, 943 F.Supp. at 1288-89 (internal citations omitted; emphases added). (As noted above, Finding C is not at issue here). On November 1, 1996, the Court entered judgment on the docket, summarized with the following language:
JUDGMENT: Ct enters Judgment in FAVOR of the Plaintiffs & holds that the Dept of Interior violated the 5th amendment due process clause and 553 of the Administrative Procedure Act. Court enters judgment confirming that the Samish Tribal Organization exists as an Indian Tribe w/in the meaning of the federal law. Three findings of Administrative Law Judge David Torbett entered on 8/31/95 are REINSTATED. Plaintiff is entitled to its taxable costs against the Defendants. [Refer to judgment for further details] (cc: counsel, Judge, Judgment Book, C.C.) Entered on: 11/1/96 (Entered: 11/01/1996)
Greene, C89-645TSZ, Dkt. # 330. However, the actual judgment includes, after the finding that “the Samish Tribal Organization exists as an Indian tribe within the meaning of federal law,” the following entry:
(3) The following three findings of Administrative Law Judge David Torbett, originally entered on August 31, 1995 but later rejected by Assistant Secretary Deer, are reinstated:
1. Part of the Noowhaha tribe merged with the Samish (see ALJ Recommended Decision at 22; Final Determination dated November 8, 1995, at 12-13, 32).
2. Many of the Samish families that settled on the Swinomish Indian Reservation did not relinquish their Samish affiliation (see Final Determination at 35, and references to record contained therein).
3. The Department of Interior could not adequately explain why the Samish had been omitted from a list of federally recognized tribes prepared during the 1970s (see ALJ findings 1-3); (final Determination at 16, 38-39).
Greene, C89-645TSZ, Dkt. # 330 (although not available on the electronic docket, a copy of the judgment is provided in C89-645TSZ at Dkt. # 347-4, pp. 264-65).
The findings designated as “proposed findings” in footnote 13, and summarized in the judgment, are the findings designated as “faux findings” by the Treaty Tribes. It is the Treaty Tribes’ position in their “unclean hands” argument that the Samish have improperly presented these findings to this Court and to the Ninth Circuit Court of Appeals as the findings that were in fact reinstated by the Court in Greene. Such substitution would be significant, as these findings are more favorable to the *929 Samish position with respect to treaty rights than the findings as written by ALJ Torbett.
The Treaty Tribes have pointed out that these footnote 13 findings were quoted verbatim from the Samish reply brief presented on the motion before the Court in Greene. See, Jannetta Declaration, Dkt. # 250, p. 570. These findings are presented in the reply brief in the form of a block quote, indented and single-spaced. Id. The style of presentation and citation makes them to be a quotation of the actual findings of the ALJ, but as demonstrated above, they are quite different. Indeed, in that they state that the Samish and Noowhaha “merged” rather than “combined,” and deny any merger of the Samish with the Swinomish, they are much more favorable to the Samish claim to treaty tribe status than the ALJ’s actual findings.
Following the district court’s quotation of these findings in footnote 13, they were cited by the Ninth Circuit Court of Appeals, in reversing this Court’s Order in this case, as though they were the actual factual findings of the ALJ. See, U.S. v. Washington, 394 F.3d at 1160 (“The district court in Greene v. Babbitt specifically reinstated a finding by the ALJ that the Samish and the Swinomish had not merged, 943 F.Supp. at 1288 & n. 13, and the fact that some members of the Swi-nomish and Lummi tribes have Samish ancestry does not make them political successors to the Samish.”) According to the Treaty Tribes, the Samish quoted the “faux” findings, rather than the actual ALJ findings, in making its arguments to the Ninth Circuit. Thus, these altered findings appear to have taken on a life of their own. According to the Treaty Tribes, this constitutes a fraud on the Court.
The Samish have responded to the accusation of misconduct by asserting that Judge Zilly, in Greene “accepted Samish’s interpretation of the findings.” Samish Reply, Dkt. # 259, p. 14 n. 14. Specifically, they argue,
The third and final general equitable issue raised by Treaty Tribes is an argument that the Samish Tribe committed “fraud” on the federal courts by “misleading” the courts on the findings of fact made by Judge Torbett in the Samish Acknowledgment proceeding. This issue was litigated and decided against Treaty Tribes in 1996. Treaty Tribes (and the United States) did not appeal it, and they present no justification for raising it again here. Treaty Tribes claim that it was “inexplicable” that Judge Zilly accepted the factual conclusions presented by the Samish Tribe. At the hearing on these issues and the Court’s decision shows that Judge Zilly knew exactly what he was doing. The opinion in Greene v. Babbitt shows that the judge cited the Samish Tribes’s factual conclusions with approval three separate times. 943 F.Supp. at 1283 (just above where the ALJ’s findings are quoted); 1288 (at two separate spots). These factual conclusions were repeated again in the judgment.
Id. at 14. 7
During the course of these proceedings, the Treaty Tribes requested a stay so that they could approach the Court in Greene and request relief from the judgment. Dkt. #265. On the same day that they filed their motion for a stay, the Treaty Tribes filed two motions in Greene v. Bab *930 bitt, C89-645TSZ: a Rule 60(b) motion for relief from judgment (Dkt. # 345), and a motion “for immediate relief from post-recognition judgment and order” (Dkt. # 346). The Court granted the motion to stay in this case, staying the proceedings until such time as the Court issued a ruling on the Greene motions. Dkt. #279.
On January 26, 2007, the Honorable Thomas S. Zilly issued his ruling on the motions in Greene, denying them on grounds of sovereign immunity, and lack of subject matter jurisdiction. Greene v. Babbitt, C89-645TSZ, Dkt. #365. He also found that the Treaty Tribes lacked standing to file a Rule 60(b) motion as they were not parties to that case, and reiterated the principle that “[fjederal recognition has a legal effect that is independent of treaty rights and treaty status.” Id. at p. 4. This Court then lifted the stay and set a briefing schedule so the parties could address the effect of Judge Zilly’s ruling on the issues in this case. Dkt. ## 299, 301.
In their post-stay memorandum, the Treaty Tribes raised for the first time the issue of their sovereign immunity, arguing that it bars suit by the Samish. Dkt. # 302, p. 4. This assertion was not pressed at oral argument, and the Court deems it meritless. The Samish post-stay memorandum addressed the relationship between the Greene ruling and the Treaty Tribes’ unclean hands argument, asserting that Judge Zilly’s ruling endorsed the Samish position on the reinstated findings.
Perhaps the most extreme argument being made by Treaty Tribes in the remand phase of the Samish Tribe’s Rule 60(b)(6) sub-proceeding is Treaty Tribes’ claim that the Samish Tribe engaged in fraud, deception and other assorted nefarious acts to “trick” Judge Zilly into reinstating the wrong critical factual findings from Administrative Law Judge Torbett’s recommended decision in favor of Samish recognition. Much of Treaty Tribes’ pleadings on remand have been directed at this issue, under the heading of alleged inequitable conduct justifying denial of the Samish Tribe’s rule 60(b)(6) motion. After the Samish Tribe appealed Assistant Secretary for Indian Affairs Ada Deer’s November 8, 1995 deletion of Judge Torbett’s August 31, 1995 recommended factual findings to federal court, Judge Zilly concluded Samish’s recognition proceeding by declaring the court’s version of the factual findings, not the original findings recommended by Judge Torbett or the Samish Tribe’s proposed factual conclusion.
Judge Zilly rejected Treaty Tribes’ arguments on this issue: “The Four Tribes also ask the Court to revise factual findings in the 1996 order as ‘clerical mistakes’ pursuant to Fed.R.Civ. Proc. 60(a). However, the substantive revisions advocated by the Four Tribes are not ‘clerical mistakes’ as that term is used in Rule 60(a).” Order, Dkt. # 365, p. 3 n. 1 (citation omitted). This ruling resolves this issue. Treaty Tribes have litigated this issue and lost, and did not appeal. They cannot argue in the present subproceeding that the factual findings entered by Judge Zilly in Greene v. Babbitt can be ignored because they were “mistaken.” Judge Zilly has characterized Treaty Tribes’ request to change the Court’s actual finding as a “substantive” revision, not a clerical mistake. Judge Zilly’s ruling reaffirmed that he intended to make the specific factual findings set out in his Order and in the Judgment.
Samish Opening Additional Brief, Dkt. # 303, pp. 13-15.
The Samish assertion that this ruling “reaffirmed” that the Court intended to substitute the findings set out in footnote *931 13 and in the judgment for the actual findings made by Administrative Law Judge Torbett is without merit. The Court’s ruling was based solely on principles of sovereign immunity, standing and jurisdiction; the Court was unable to reach the merits of the Treaty Tribes’ Rule 60(b) motion. The characterization of the revisions advocated by the Treaty Tribes as substantive rather than mere clerical mistakes was a basis for finding the motion must be brought under Rule 60(b) rather than Rule 60(a). The question of whether the findings set forth in the judgment were included by mistake remains unresolved.
However, this Court finds in the plain language of the Order underlying that judgment no support for the Samish position on the factual findings. The Court in Greene quoted the actual findings of the Administrative Law Judge in the body of the opinion, and discussed their significance. Greene v. Babbitt, 943 F.Supp. at 1283-84 . And the Court repeatedly stated that these findings were reinstated. The word “reinstate” has in this context but a single plain meaning: that is “to restore to a former position or state” (Oxford English Dictionary online edition) or, stated differently, “to restore to a previous effective state” (Webster’s New Collegiate Dictionary, 1977); “to place again in a former state or position; to restore” (Black’s law Dictionary, Seventh Edition, 1999). It is thus only the factual findings as they were originally written by Administrative Law Judge Torbett that could be reinstated, and the Court’s language is clear that this is what occurred. Reinstatement of the original findings was found by the Court to be the appropriate remedy for the due process violation caused by Assistant Secretary Deer’s improper rejection of the ALJ’s findings. Greene, 943 F.Supp. at 1288-89 . In the final sentence of the Order, the Court stated that “[t]he appropriate remedy under the unique circumstances of this case is to reinstate the three contested findings of the Administrative Law Judge that were arbitrarily rejected by the decision maker after her ex parte meeting with the government’s lawyer. IT IS SO ORDERED.” Id. at 1289 .
The assertion of the Samish that the Court adopted their version of the findings by quoting them in footnote 13 is thus erroneous. Such a change in the language would have constituted a substitution or replacement, not a reinstatement. The findings set forth in footnote 13 and designated as “proposed findings” must thus be regarded as a paraphrase of what the Samish requested in their motion; they are not findings that were in fact reinstated, because only the original findings could be “reinstated.” While this Court cannot account for the appearance of the Samish version of the findings in the judgment, it notes the judgment clearly states that it is the findings of Administrative Law Judge that were reinstated. 8
The Court finds that the Samish conduct in repeatedly asserting that their version of the findings are the ones that have been adopted by the Court constitutes inequitable conduct and “unclean hands.” 9 Their *932 argument, set forth above, that the Court “concluded Samish’s recognition proceeding by declaring the Court’s version of the factual findings, not the original findings recommended by Judge Torbett or the Samish Tribe’s proposed conclusions” is improper in several respects. The Court did not declare its own version of the findings; as set forth above it could only reinstate what was in the original ALJ findings. The Court did, however, quote from the Samish proposed findings in the controversial footnote 13. That footnote, as explained above, is taken verbatim from the block quote set forth in the Samish reply brief in Greene. Greene v. Babbitt, C89-545TSZ, Dkt. # 293, p. 4. In presenting these findings in such a form that they appear to be the actual findings of Administrative Law Judge Torbett, and then repeatedly asserting that these more favorable findings are the ones that were in fact “reinstated” by the Court, the Samish have acted inequitably, a factor to be weighed against other factors in deciding this Rule 60(b) motion.
V. Finality
In the Order remanding the matter to this Court, the Ninth Circuit found this Court’s concerns over finality too speculative to support denial of the Rule 60(b) motion, in light of the Samish proposal for a plan to minimize the disruptive effects of their entry into this case. “[H]ad the district court properly concluded that federal recognition was an extraordinary circumstance the somewhat speculative concerns about finality are insufficient to have carried the day.” U.S. v. Washington, 394 F.3d at 1162 . The appellate court also noted that “the fact that the district court has ongoing judicial supervision of Washington I undercuts these finality concerns.... Indeed, the 17,500 docket entries and more than 50 separately-numbered subproceedings in Washington I are testament to the inherent lack of finality of the judgment.” Id. (emphasis in original).
The Court now renews its concerns regarding respect for the finality of this judgment. There is a significant change from the prior circumstances, in that the Samish proposal for integrating themselves into this case as a Treaty Tribe with a minimum of disruption has been withdrawn. As a result, the specter of disruption and even chaos in management of this case is once again a serious concern. As for the “inherent lack of finality,” as of today the docket in Washington I runs to 19,053 entries. 10 However, a great many of these entries are notices of appearance, administrative notations, and other matters not indicative of litigation activity or Court involvement. The Court has retained jurisdiction in this case for limited purposes only, as set out in the Order Modifying Paragraph 25 of the Permanent Injunction dated August 23, 1993. 11 U.S. v. Washington, C70-9213, Dkt. # 13599. That Order provides for the initiation of dispute resolution in matters within the reach of the Court’s jurisdiction, followed by the filing of a subproeeeding, each of which is given a separate case number and *933 treated as a separate case. As judgment is entered in each subproceeding, that judgment is no less final for the fact that other subproceedings are ongoing.
It would seriously offend the well-established principle of the finality of judgments if this case were to be reopened for the purpose advanced here. As described in the factual recitation set forth above, the treaty status of the Samish was litigated and decided in 1979, after a full and fair trial and subsequent evidentiary hearing. The Samish first had a five-day trial before Magistrate Judge Cooper, sitting as a Special Master. Magistrate Judge Cooper determined, on the basis of evidence presented by the Samish and by the Treaty Tribes, that the Samish were neither a treaty tribe nor a political successor to a signatory treaty tribe. The Samish appealed this determination to Judge Boldt, who held a de novo evidentiary hearing. Judge Boldt’s ruling includes findings that the present-day Lummi and Swinomish Reservation tribes include descendants of the 1855 Samish Indians (FF 23); that the Samish membership rolls have no requirement for any particular quantum of Indian ancestry, and that those rolls contain members with as little as 1/16 or 1/32 Indian ancestry (FF 26); that the members of the Samish Tribe have not lived as a continuous separate, distinct and cohesive Indian cultural or political community (FF 27), and that the Samish had not maintained an organized tribal structure in a political sense (FF 30). U.S. v. Washington, 476 F.Supp. at 1106 . He also found that the tribe was not recognized by the United States as an Indian governmental or political entity (FF 25).
Judge Boldt’s decision on the matter was affirmed by the Ninth Circuit, which held that the conclusion of law that “only tribes recognized as Indian political bodies by the United States may possess and exercise the tribal fishing rights” was error, but that the finding of fact with respect to a lack of political organization independently supported the decision. U.S. v. Washington, 641 F.2d at 1372-73 . The Supreme Court denied certiorari. This is a final judgment, and the fact that a different tribunal, applying different standards in furtherance of a different purpose, reached a contrary result is no basis for reopening it. The Samish have demonstrated no flaw in the process of the previous proceedings; instead they take issue with the result. Yet it would impugn the very integrity of the legal process to allow the Samish to re-litigate a matter that was determined after a full and fair hearing, and affirmed on appeal. This is especially so when the later administrative proceedings that resulted in a decision favorable to the Samish were not adversarial proceedings, as between the Samish and the Treaty Tribes. Some Treaty Tribes were allowed to file amicus briefs, but none was allowed to present evidence. Thus, the conflicting claims of other tribes to be successors to the treaty-time Samish were not before the ALJ in the acknowledgment proceedings.
It is not only this judgment that is at issue. In the so-called shellfish subpro-ceeding, the Court determined that the Upper Skagit would be recognized as the successor to the treaty-time Noowhaha. U.S. v. Washington, 873 F.Supp. 1422 , 1449 (W.D.Wash.1994). The finality of that decision and others would be at risk if the Samish motion were to be granted.
CONCLUSION
Rule 60(b) authorizes setting aside a judgment “only for reasons that would have prevented entry of the judgment in the first place, had the reasons been known at the time judgment was entered.” U.S. v. Washington, 98 F.3d 1159, 1164 *934 (9th Cir.1996) (Judge Kozinski, concurring). Here, the Ninth Circuit has found the requisite extraordinary circumstances in the events that led to federal recognition of the Samish tribe. However, it cannot be said with any degree of certainty that federal recognition in 1978 “would have prevented entry” of the judgment against the Samish regarding treaty status. Lack of federal recognition was but one of many factors listed by Judge Boldt in denying the Samish request for treaty tribe status. Other “unrecognized tribes,” such as the Stillaguamish and the Upper Skagit, which did not have federally-approved membership rolls and did not reside on reservations, were accorded fishing rights and full participation in this case. See U.S. v. Washington 641 F.2d 1368, 1374 (9th Cir.1981); citing U.S. v. Washington, 384 F.Supp. at 327, 378-79 . This suggests that the crucial factor for Judge Boldt’s determination was the absence of an organized tribal structure (See, Finding of Fact 30: “The citizens comprising the Intervenor Samish Tribe have not maintained an organized tribal structure in a political sense.” U.S. v. Washington, 476 F.Supp. at 1106 ). The Samish have asserted no grounds demonstrating that they were prevented from proving the continuity of their tribal organization at the trial held before Magistrate Judge Cooper and the de novo evidentiary hearing held by Judge Boldt.
The Court now finds, after full consideration of the extensive record and the parties’ memoranda and exhibits, that the extraordinary circumstances which led to federal recognition of the Samish Tribe cannot overcome the other factors in the Rule 60(b) equation, such as timeliness and equitable considerations, and respect for the finality of the judgment. The Court further finds no basis for allowing the matter of the Samish treaty tribe status to be re-litigated. The Rule 60(b) motion is accordingly DENIED.
JOINT MOTION FOR ORDER TO ADOPT STIPULATION REGARDING IMPLEMENTATION OF SHELLFISH SETTLEMENT AGREEMENT
Sub-proceeding 89-3 (Shellfish)
(October 10, 2008)
The Plaintiff Indian Tribes and Interve-nor-Defendant Puget Sound Commercial Shellfish Growers seek this Court’s entry of an Order that adopts those Parties’ Stipulation Implementing Shellfish Settlement Agreement, attached hereto as Exhibit A. Plaintiff United States and Defendant State of Washington have informed counsel that they have no objection to this Motion.
The undersigned representatives of the Parties affirm and agree that the Stipulation is fair and reasonable and, by signatures of their representatives below, the Parties consent to and are fully bound by all its terms and consent to the Order Adopting the Stipulation.
EXHIBIT A
THE HONORABLE RICARDO S. MARTINEZ
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
UNITED STATES OF AMERICA, et al., Plaintiff,
v.
STATE OF WASHINGTON, et al., Defendant.
No. C70-9213
Sub-proceeding 89-3 (Shellfish)
*935 STIPULATION REGARDING IMPLEMENTATION OF SHELLFISH SETTLEMENT AGREEMENT
The Settlement Agreement, Dkt. # 14476, adopted by the Court in the Order And Consent Decree Approving Settlement Agreement, Dkt. # 14477, requires those persons seeking to be considered Intervenor-Defendants under 12 of the Settlement Agreement to intervene and serve and file documentation establishing that they meet the terms of 12 by March 1, 2008. In addition, ¶ 11 of the Settlement Agreement provides that any dispute regarding the qualifications of any person to become an Intervenor-Defendant pursuant to 12 shall be resolved as set forth in the Revised Shellfish Implementation Plan and that the Court retains continuing jurisdiction for that purpose. The Plaintiff Tribes and Intervenor-Defendants previously stipulated, and an order was entered by the Court on February 8, 2008, Dkt. # 14482, that the Plaintiff Tribes are required to initiate the dispute resolution process by filing objections to requests for intervention within eight months of service of each request for intervention. An amendment to the prior Stipulated Order is now jointly sought to provide the parties additional time to resolve disputes prior to invocation of the dispute resolution process.
The parties are actively cooperating with respect to issues regarding the persons and tidelands able to participate in the Settlement Agreement. If additional time is permitted for continued discussions, the parties believe that some or most issues may be resolved without the need for the Court’s dispute resolution process, and thus the parties jointly request that the deadline for the Plaintiff Tribes to file objections be extended to June 30, 2009. The Intervenor-Defendant Commercial Shellfish Growers and Plaintiff Tribes therefore stipulate as follows:
Paragraph 2 of the February 8, 2008, Order Adopting Stipulation Re Shellfish Settlement Agreement, Dkt. No. 14482, shall be amended such that the Plaintiff Tribes shall have until June 30, 2009 to file and serve any objection to any notice and request for intervention. In all other respects the Order Adopting Stipulation Re Shellfish Settlement Agreement shall remain unchanged.
ORDER ADOPTING STIPULATION REGARDING IMPLEMENTATION OF SHELLFISH SETTLEMENT AGREEMENT
Sub-proceeding 89-3 (Shellfish)
(October 21, 2008)
IT IS HEREBY ORDERED:
The Court, having reviewed the Joint Motion for Order to Adopt Stipulation Re: Implementation of Shellfish Settlement Agreement, including the attached Stipulation Regarding Implementation of Shellfish Settlement Agreement, finds that the Stipulation is fair and reasonable, both procedurally and substantively, consistent with applicable law, in good faith, and in the public interest. The Stipulation is hereby entered and approved.
ORDER ON MOTION TO DISMISS
Subproceeding No. 05-4
(November 13, 2008)
This matter has been remanded to this Court by the Ninth Circuit Court of Appeals for this Court’s failure to state a basis for its jurisdiction. It is now before the Court for consideration of the motion to dismiss filed by the Suquamish Tribe (“Suquamish”). Dkt. # 82. The Court has reviewed the motion, the response and replies, and relevant case documents. For *936 the reasons set forth below, the Court shall DENY the motion to dismiss.
DISCUSSION
This is one of two Requests for Determination filed by Treaty Tribes concerning the extent of the usual and accustomed fishing grounds (“U & A”) of the Suquamish, described by the Honorable George Boldt in 1978 as follows:
The usual and accustomed fishing places of the Suquamish Tribe include 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.
United States v. Washington, 459 F.Supp. 1020, 1049 (1978). In June, 2005, two months before this subproceeding was initiated, the Upper Skagit Indian Tribe (“Upper Skagit”) filed a Request for Determination (“Request”) asking the Court to determine that certain defined areas of Saratoga Passage and Skagit Bay, both to the east of Whidbey Island, are not within the Suquamish U & A as defined by Judge Boldt. U.S. v. Washington, Cause No. 70-9213, subproceeding 05-03. The Court found in subproceeding 05-03 that it retained jurisdiction under Paragraph 25 of the permanent injunction in this case, as modified August 23, 1993, to consider the Request of the Upper Skagit. That matter was decided on motions for summary judgment, and is currently on appeal.
This Request for Determination was filed as subproeeeding 05-04 by the Tulalip Tribes (“Tulalip”), who ask the Court to find that certain inland marine waters on the east side of Admiralty Inlet (specifically including Admiralty Bay, Mutiny Bay, Useless Bay, and Cultus Bay) as well as Saratoga Passage, Penn Cove, Holmes Harbor, Possession Sound south to Point Wells, Port Susan, Tulalip Bay, and Port Gardner do not lie within the Suquamish U & A as it was defined by Judge Boldt in 1978. Request for Determination, ¶ 3. The Tulalip assert that they do not seek to re-litigate the adjudicated U & A of the Su-quamish Tribe, but rather seek to clarify ambiguities in the language and identify the geographic scope of the area delineated by Judge Boldt. Request for Determination, ¶4. The matter was earlier dismissed on the basis of laches and res judicata. Dkt. # 17. On appeal, the matter was remanded to this Court for a determination of this Court’s continuing jurisdiction in the matter.
Following remand, the Tulalip filed an Amended Request for Determination. Dkt. # 81. The Suquamish then moved to dismiss, asserting lack of jurisdiction, equitable estoppel, laches, and res judicata. Dkt. # 82. The Tulalip have opposed the motion.
The Court has retained jurisdiction in this case, C70-9213, 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. C70-9213, Dkt. # 13599. This paragraph determines the scope of this Court’s jurisdiction. In a recent Order finding no basis for jurisdiction over an inter-tribal dispute regarding resource allocation, the Court construed that scope strictly, finding that “the Court has retained "jurisdiction in this case for the specific purposes set forth in Paragraph 25, and no other.” U.S. v. Washington, C70-9213, Subproceeding 05-02, Dkt. # 94, p. 6.
In their original Request for Determination, the Tulalip invoked the jurisdiction of this Court under Paragraph 25(a)(3), (a)(4), and (a)(7). Dkt. # 1. In their amended *937 Request, they additionally invoke Paragraph 25(a)(1) as a basis for jurisdiction. Dkt. # 81.
Paragraph 25 states, in relevant part,
(a) The parties or any of them may invoke the continuing jurisdiction of this court in order to determine:
(1) Whether or not the actions intended or effected by any party (including the party seeking a determination) are in conformity with Final Decision # 1 or this injunction;
(3) Whether a tribe is entitled to exercise powers of self-regulation;
(4) Disputes concerning the subject matter of this case which the parties have been unable to resolve among themselves;
... and
(7) Such other matters as the court may deem appropriate.
C70-9213, Dkt. # 13599.
As noted above, the Court earlier found in Subproceeding 05-03 that it retained jurisdiction over a similar dispute between the Suquamish and the Upper Skagit Indian Tribe regarding the extent of the Su-quamish U & A. C70-9213, Subproceeding 05-03, Dkt. # 43. Such dispute fell within the scope of paragraph 25(a)(1), pursuant to which the Court retains jurisdiction to determine whether the actions of the Su-quamish in fishing certain areas are in conformity with Final Decision # 1 or the permanent injunction. Id. The same reasoning applies here. The Request alleges that the Suquamish have been fishing in areas that are not within their U & A as it was determined by Judge Boldt, and therefore their actions are not “in conformity with Final Decision # 1 or this injunction”. Paragraph 25(a)(1). While the Suquamish argue that a 1983 settlement agreement precludes use of Paragraph 25(a)(1) as a basis for jurisdiction, the Court disagrees. The 1983 agreement may further define the rights of these two parties, but it does not deprive this Court of Paragraph 25(a)(1) jurisdiction. 1
The Court therefore finds that it retains jurisdiction over this dispute pursuant to that section. The Suquamish motion to dismiss for lack of jurisdiction shall be denied.
As to the remaining bases advanced for dismissal, all three — laches, estoppel, and res judicata — require a factual analysis which is not appropriate on a motion to dismiss. The Court shall deny the motion to dismiss on these bases, without prejudice to renewal by motion for summary judgment at the appropriate time.
CONCLUSION
The Suquamish Tribe’s motion to dismiss is DENIED. Pursuant to F.R.Civ. Proc. 12(a)(4). the Court grants the Su-quamish request for a ten-day extension of time to file an answer to the Request for Determination. The answer shall accordingly be filed within twenty (20) days of the date of this Order.
ORDER ON MOTION FOR CERTIFICATE OF APPEALABILITY
Subproceeding No. 05-4
(January 5, 2009)
This matter comes before the Court for consideration of the motion by the Su-quamish Tribe for leave to proceed to in *938 terlocutory appeal of the Court’s November 13, 2008 Order on Motion to Dismiss. The Suquamish assert that the Court’s ruling on subject matter jurisdiction conflicts with two previous Orders issued by this Court, in Subproceedings 05-03 and 05-02, both of which are currently on appeal. The Suquamish contend that it would best conserve judicial resources if the matter of jurisdiction could be resolved now.
The requirements for certification are that the case present a “controlling question of law” as to which there is “substantial ground for difference of opinion,” and that an immediate appeal from the Order may “materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292 (b). The party seeking certification bears the burden of showing that “exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978) (quoting Fisons, Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir.1972)).
In this case, there is a controlling question of law regarding the Court’s jurisdiction to consider the Amended Request for Determination. Immediate appeal from this Court’s denial of the motion to dismiss may materially advance the ultimate termination of this litigation, in that the question of this Court’s continuing jurisdiction in a parallel case (U.S. v. Washington, C70-9213, Subproceeding 05-03) is already before the Ninth Circuit Court of Appeals. A ruling that the Court has no jurisdiction to consider the Request for Determination in Subproceeding 05-03 would be dispositive of the question in this one as well. As for the “substantial ground for difference of opinion,” the Court notes that the Ninth Circuit Court of Appeals has accepted the jurisdictional question for appeal in Subproceedings 05-OS and 05-02, and has not yet resolved the matter, so it could be said to provide ground for difference of opinion. Where an issue has not been squarely addressed by the Ninth Circuit Court of Appeals and is “inextricably intertwined” with an issue already on appeal, certification is appropriate. Wells Fargo Bank v. Bourns, Inc., 860 F.Supp. 709, 717 (N.D.Cal.1994).
In certifying this matter for interlocutory appeal, the Court declines to find that its own recent rulings on jurisdiction in this matter in Subproceedings 05-02, 05-03 and 05-04 are inconsistent in any way. In Subproceeding 05-03, the Upper Skagit alleged subject matter jurisdiction “pursuant to the continuing jurisdiction of this Court in U.S. v. Washington.” Subpro-ceeding 05-03, Dkt. # 1, p. 3. In joining the subproceeding with a Cross-Request for Determination, the Swinomish Indian Tribal Community alleged jurisdiction under paragraph 25(a)(1) of the Order Modifying Paragraph 25 of the Permanent Injunction. Subproceeding 05-03, Dkt. # 44, p. 2. This paragraph provides for the continuing jurisdiction of this Court to determine “whether or not the actions intended or effected by any party ... are in conformity with final Decision # I or this injunction ...” C70-9213, Dkt. # 13599, p. 1. In denying a motion to dismiss for lack of jurisdiction, the Court found that
[t]he Request alleges that the Suquamish have been fishing for crab in certain areas on the east side of Whidbey Island that are within the Upper Skagit’s own U & A, and that this action is not in conformity with Judge Boldt’s determination of the Suquamish U & A because this area is not included within Puget Sound as Judge Boldt intended that term. This Court therefore has jurisdic *939 tion under Paragraph 25 to consider this Request.
Subproceeding 05-03, Dkt. # 43, p. 2. By referring to actions “not in conformity with” Judge Boldt’s decision (which set forth the extent of the Suquamish Tribe’s usual and accustomed fishing area (“U & A”)), the Court specifically found that it retained jurisdiction under Paragraph 25(a)(1) to consider the Request for Determination filed by the Upper Skagit and joined by the Swinomish.
The same jurisdictional basis applies to the Request for Determination filed by the Tulalip in this subproceeding, as the Court has held in the Order which the Suquamish seek to appeal. The Tulalip asserted Paragraph 25(a)(1) in the Amended Request for Determination. Dkt. # 81, p. 2. The Request asks this Court for a determination that the “actions intended or effected by any party” (namely, actions of the Suquamish Tribe in fishing in certain areas) are “in conformity” with Judge Boldt’s determination on the boundaries of the Suquamish usual and accustomed fishing areas. U.S. v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash.1978). The fact that the Court’s determination requires interpretation of terms used by Judge Boldt in his ruling does not alter the jurisdictional basis.
In Subproceeding 05-02, by contrast, the Court found that it did not have jurisdiction over a resource allocation dispute between Treaty Tribes. The requesting Tribes invoked this Court’s jurisdiction under several provisions of Paragraph 25, namely 25(a)(1) (“whether or not the actions intended or effected by any party in conformity with Final Decision # 1 or this injunction”); 25(a)(4) (“disputes concerning the subject matter of this case which the parties have been unable to resolve among themselves”); and 25(a)(7) (“such other matters as the court may deem appropriate”). In dismissing the Request for Determination for lack of jurisdiction, the Court stated that “the Court has retained jurisdiction in this case for the specific purposes set forth in Paragraph 25, and no other. The request for allocation of the treaty harvest as a form of equitable relief does not fall within any of the purposes set forth therein.” Subproceeding 05-02, Dkt. # 94, p. 6.
With respect to Paragraph 25(a)(1), the Court found that the requesting party had not identified any “action” by any party which is, or is not, in conformity with Final Decision # 1 or the Injunction. Id., p. 5. Instead, the Skokomish Tribe, as requesting party, was asking the Court to “declare an equitable treaty fishing harvest allocation for the available harvest of all species of finfish and shellfish in Hood Canal.” Id., p. 2. Allocation among Treaty Tribes with overlapping fishing areas (as opposed to apportionment between Tribal and non-Tribal fishermen) was not part of Final Decision # I nor the permanent injunction in U.S. v. Washington. This request therefore did not fit within the limits of paragraph 25(a)(1) With respect to Paragraph 25(a)(4), the Court found that the equitable right of any one Treaty Tribe to harvest a certain allocation of fish does not raise a dispute “concerning the subject matter of this case,” because the subject matter of this case is treaty fishing rights, not inter-tribal allocation. Id., p. 4. Finally, with respect to paragraph 25(a)(7), the Court simply declined to exercise the discretion afforded it in that paragraph “in light of the considerations set forth elsewhere” in the opinion. Id., p. 5.
The Ninth Circuit Court of Appeals heard oral argument in the two Subpro-ceedings now on appeal on October 21, 2008, and a ruling may be forthcoming at any time. The jurisdictional issue in this subproceeding is inextricably intertwined *940 with the one currently on appeal on Sub-proceeding 05-03. Judicial efficiency would be promoted, and the termination of this litigation advanced, if these cases were joined for consideration before the Circuit. Upon the ruling on these issues by the Ninth Circuit, the action could then be more efficiently managed by this Court. The Court therefore finds that it would best conserve judicial resources, and the parties’ as well, to certify the matter for interlocutory appeal and allow the Su-quamish to request that this appeal be consolidated with the appeal in Subpro-ceeding 05-03.
CONCLUSION
Accordingly, the motion of the Suquamish Tribe for certification of the Court’s Order on Motion to Dismiss, dated November 13, 2008, for interlocutory appeal is GRANTED. The Court designates that Order as immediately appealable pursuant to 28 U.S.C. § 1292 (b), solely as to the issue of this Court’s jurisdiction over this Amended Request for Determination under Paragraph 25 of the Permanent Injunction, as modified August 23, 1993. U.S. v. Washington, C70-9213, Dkt. # 13599. The Suquamish appeal shall include a request that the appeal be consolidated -with the appeal in Subproceeding 05-03. This subproceeding is STAYED until the Ninth Circuit Court of Appeals has either declined to accept the interlocutory appeal, or has accepted the appeal and issued an opinion dispositive of the issue.
ORDER ON MOTION TO DISMISS
Subproceeding No. 89-2
(June 16, 2009)
This matter is before the Court for consideration of the Lummi Nation’s motion to dismiss the motion for contempt filed by the Lower Elwha Klallam Tribe, Port Gamble S’Klallam Tribe, and the Jamestown S’Klallam Tribe (collectively, the “Klallams”). Dkt. ##217, 221.- The Klallams’ motion asks the Court to issue an Order to Show Cause why the Lummi Nation should not be held in contempt for violating orders of this Court and the Ninth Circuit Court of Appeals regarding the extent of the Lummi Nation usual and accustomed fishing area (“U & A”). The Lummi Nation asserts in their motion to dismiss that the contempt motion, filed in a closed subproceeding, is improper, and the issue regarding Lummi Nation fishing in the disputed area should be addressed in a new subproceeding filed according to the procedures outlined in Paragraph 25 of the permanent injunction, as amended August 23, 1993. C70-9213, Dkt. #13599. The Court agrees.
The Klallams assert in their contempt motion that the Lummi Nation has issued fishing regulations for the area south of the San Juan Islands and west of Whidbey Island, in clear violation of orders issued by the Court in this subproceeding and affirmed in part by the Ninth Circuit Court of Appeals. The courts found that the U & A of the Lummi Nation, described by Judge Boldt as “the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle ...” did not include the Strait of Juan de Fuca or the mouth of Hood Canal, but did include Admiralty Inlet. United States v. Washington, 384 F.Supp. 312, 361 (W.D.Wash.1974); U.S. v. Lummi Indian Tribe, 235 F.3d 443, 453 (9th Cir.2000). Nowhere did either this Court or the Ninth Circuit Court of Appeals define the boundaries of the Strait of Juan de Fuca for the purpose of exclusion from the Lum-mi U & A. While the marine area immediately west of Whidbey Island and south of the San Juan Islands may be considered *941 part of the Strait of Juan de Fuca, some portion of this area is nec

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7224422. Public record. Not legal advice.