Reply Brief — Puyallup Tribe, Inc. v. Department of Game of Wash.

FOR ARGUMENT

Iu the Supreme Cot

of the Anited States

OCTOBER TERM, 1976

No. 76-423

PUYALLUP TRIBE, INC., and

RAMONA BENNETT,

Petitioners,

v.

DEPARTMENT OF GAME OF THE STATE

OF WASHINGTON, and NORTHWEST

STEELHEADERS COUNCIL OF TROUT

UNLIMITED and GARY ELLIS,

Respondents.

RESPONSE OF NORTHWEST STEELHEADERS COUNCIL OF

TROUT UNLIMITED AND GARY ELLIS TO AMICUS CURIAE

BRIEF OF THE UNITED STATES

DON S. WILLNER

WILLNER, BENNETT, RIGGS & SKARSTAD

One S. W. Columbia, Suite 1400

Portland, Oregon 97258

Telephone (503) 228-6611

ounsel for Northwest Steelheaders Council

of Trout Unlimited and Gary Ellis

STEVENS-NESS LAW PUB. CO.. PORTLAND, ORE.

INDEX

Page

Table of Authorities dake hee >a

I cotthigieciastiisaniclsii scnatinnintiantaiiaipadi iioiimmeantanine 1

TABLE OF AUTHORITIES

Cases

> T’ Laboratories v. University of

oundations, 402 U.S. 313 (1971) _ 4

a. v. aye itan Life Insurance Co., 191

Wash 459, 71 P.2d 552, agpens dismissed, 306

U.S. 665 (1987) 2

Davis v. Nielson, 9 Wash. App. § 864, 515 P.2d 996

(1978) . 2

Eichler v. Yakima V

83 Wash. 2d 1, Valley 7 1387 portation 2

Knetsch v. United States, 364 U.S. 361 (1960) 3

Rutter v. Rutter, 59 Wash. 2d 781, 370 P.2d 862

(1962) 2

Safewa eway Stores, Ine. v. . Oklahoma Retail Grocers

Ass’n., Inc., 360 U.S. 334 (1959) . a tn

Samvick v. Puget Sound Title pe Co., 70

Wash. 2d 438, 423 P.2d 624 (1967) . 4

United Automobile, Aerospace & Agricultural

Im Workers, Local 283 Vv. pond

U.S. 205 (1965) . =m 4

United States v. Philadelphia National Bank,

374 U.S. 321 (1963) ii 3

United States v. Washington ton, 384 F. Supp. 812 ne

W.D. Wash., 1974) aff’d 520 F.2d

1975); cert. denied 423 U.S. {re8

(1976) te 1, 8,4

Walters vy. City of St. Louis, 347 U.S. 281 (1954) 3

Iu the Supreme Court

of the United States

OCTOBER TERM, 1976

No. 76-423

PUYALLUP TRIBE, INC., and

RAMONA BENNETT,

Petitioners,

v.

DEPARTMENT OF GAME OF THE STATE

OF WASHINGTON, and NORTHWEST

STEELHEADERS COUNCIL OF TROUT

UNLIMITED and GARY ELLIS,

Respondents.

RESPONSE OF NORTHWEST STEELHEADERS COUNCIL OF

TROUT UNLIMITED AND GARY ELLIS TO AMICUS CURIAE

BRIEF OF THE UNITED STATES

ARGUMENT

The United States as amicus curiae argues on

page 21 and 22 of its brief that res judicata and col-

lateral estoppel bar Northwest Steelheaders Council

of Trout Unlimited and Gary Ellis from litigating is-

sues in this case because of the decision of Judge Boldt

in United States v. Washington, 384 F. Supp, 312

(W.D. Wash., 1974), aff’d 520 F.2d 676 (9th Cir.,

1975, cert. den. 423 U.S. 1086 (1976). This conten-

tion must fail for any one of the following reasons:

1. The answer of Puyallup Tribe, Inc. and Ra-

mona Bennett does not raise the issue of res judicata

or collateral estoppel for the decision of Judge Boldt

(App. 11-18). Under Washington law res judicata or

collateral estoppel are affirmative defenses which

must be raised by answer or be waived. Davis v. Niel-

son, 9 Wash. App. 864, 515 P.2d 995 (1973) (res ju-

dicata is an affirmative defense) ; Davies v. Metropol-

itan Life Insurance Co., 191 Wash. 459, 71 P.2d 552,

appeal dismissed, 306 U.S. 665 (1937) (defense of

res judicata requires pleading and proof and cannot

be raised by demurrer).

2. The assignments of error of Puyallup Tribe,

Inc. and Ramona Bennett in their briefs to the Su-

preme Court of Washington do not raise res judicata

or collateral estoppel for the decision of Judge Boldt.

(Puyallup Br. 17-24; Bennett Br. 1-7, App. A-1-6).

Under Washington law a matter not raised by assign-

ment of error is waived. Eichler v. Yakima Valley

Transportation Company, 83 Wash. 2d 1, 514 P.2d

1387 (1973) (arguments not assigned as error are

not considered on appeal) ; Rutter v. Rutter, 59 Wash.

2d 781, 370 P.2d 862 (1962) (the Court will not con-

sider an issue not raised in trial court or assigned as

error).

3. Petitioners cannot raise in this Court a matter

not presented to the courts below. Safeway Stores,

Ine. V. Oklahoma Retail Grocers Ass’n., Inc., 360 U.S.

334, 342 (1959) (appellant’s claim which was not

——- >

raised below will not be considered) ; Walters v. City

of St. Lowis, 347 U.S. 231 (1954) (this Court will not

review what State Supreme Court below did not de-

cide).

4. Even if res judicata or collateral estoppel are

fairly comprised in the issue set forth in the Petition

for Certiorari they are barely mentioned in the Peti-

tion for Certiorari and are waived. Cf., United States

v. Philadelphia National Bank, 374 U.S. 321, 334-35

(footnote 10) (1963) (issues not developed with any

fullness before this Court are considered abandoned).

5. An amicus curiae has no standing to raise a

new issue in this Court that was not appropriately

raised by a party. Knetsch v. United States, 364 U.S.

361, 370 (1960) (this Court refused to pass on an

issue raised by the amicus but not by a party).

In addition to these five separate reasons which

benefit all respondents, Northwest Steelheaders Coun-

cil of Trout Unlimited and Gary Ellis can rely on

these additional reasons:

6. The brief of petitioners in this Court does not

seek to raise res judicata and collateral estoppel

against Northwest Steelheaders Council of Trout Un-

limited and Gary Ellis and the issues are waived. Cf.,

United States v. Philadelphia National Bank, supra.

7. Northwest Steelheaders Council of Trout Un-

limited and Gary Ellis were not parties in the case be-

fore Judge Boldt, United States v. Washington, supra,

were denied intervenor status, and cannot be barred by

4

a case in which we were not parties." [/nifed Automo-

bile, Aerospace & Agricultural Implement Werkers,

Local 283 Vv. Scofield, 382 U.S. 205, 213 (1965) (party

denied intervenor status is not bound by res judicata

rules; there the Court refused to consider the union

bound by litigation conducted by the United States on

its behalf); Blonder-Tongue Laboratories v. Univer-

sily of Ilinois Foundations, 402 U.S, 313, 329 (1971)

(litigants who did not appear in prior action may not

be collaterally estopped); Samvick v. Puget Sound

Title Insurance Co., 70 Wash. 2d 438, 423 P.2d 624

(1967) (escrow agent who was not a party is not

bound by prior litigation).

Respectfully submitted,