Opposition Brief — Sharp v. United States

ju The

Supreme Court of the United States

NITED STATES OF AMERICA. on it

behalf and as trustee on behalf of the

Lummi Nation d THE LUMMI NATION

On Petition For Writ Of Certiorari

lo ‘The United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION OF LUMMI NATION

tO PETITION FOR CERTIORARI

.

riA i aT hiIN , J nat

RAAS, JOHNSEN & STUEN, PS

1503 KE Street © PO Box 5746

Bellingham, WA 98227-5746

360-647-0234 phone

P , ,

Aftorneys for Re DU Le i

QUESTIONS PRESENTED

1. Does an upland owner commit a trespass

when she refuses a request by the owner of the

tidelands to remove rock rip rap that is located on the

tidelands?

2. Under the “common enemy” doctrine, can an

upland owner deprive a tideland owner of its vested

right to the benefits of an ambulatory tidal boundary

by placing rock rip rap to permanently “fix” the

location of the tidal boundary?

3. Does stare decisis militate against revisiting

the issue of tidelands ownership on the Lummi

Reservation, when three prior cases in the Ninth

Circuit have held that the State of Washington does

not own the tidelands, and the State declined to

assert ownership in this proceeding?

4. Was an Executive Order, signed by President

Grant and authorized by Congress when it ratified

the Treaty of Point Elliott, sufficient to reserve title to

tidelands on the Lummi Reservation to the United

States in trust for the Lummi Nation?

5. Is it a violation of Section 10 of the RHA for

an upland owner to refuse to remove shore defense

structures that were originally erected on the

uplands, but are now located seaward of the mean

high water mark due to movement of the boundary

between upland and tideland?

6. Did the District Court abuse its discretion in

issuing an injunction under the RHA?

ll

PARTIES TO THE PROCEEDINGS

IN THE COURT BELOW

Petitioner has correctly identified the parties to

the proceedings below.

CORPORATE DISCLOSURE STATEMENT

Defendant-Appellee Lummi Nation is a federally

recognized Tribe of American Indians. It has no

parent companies, subsidiaries or affiliates that have

issued shares to the public.

Hl

TABLE OF CONTENTS

Page

Questions Presented for Review ...................:00c0ee I

Parties to the Proceedings in the Court Below ..... ii

Corporate Disclosure Statement........................005 1i

Me Oe CO avn chi sics crane panacea sev ce vivaonceenesessaterees ii]

Ne NOD a5 vis visas yi kc cn ticha ssvaedecancscoeaven v1

=, RES Ras SAAR IRR ADA R INS ei eR NN eet ero on 1

Treaty, Executive Order & Statutory Provisions

ie ee Mc Lmusdetias dee deunoeed aataaTeaaEt eee 1

Errors in Petition for Certioran ........................008- 2

PUM GENS OF CEN CO onan oec sais sncscecevavetnesalenvcdsees 6

Pe a ra tae Pe na 6

B. Rulings Below on the Trespass Claim ........ 8

C. Rulings Below on the Rivers and Harbors

aN ss cs sadn as bus ee nasearcaus tanec saporentneese. 12

EP, FP COTOE Bh POI viens ond Sova cevdnarsiidoaccccvausees 12

Reasons for Denying Writ of Certioran................. 13

Ls “WO Gi akc es 13

A. The Court of Appeals decision is very

limited in scope and impact ......... ERE 14

B. The Court would have to overrule more

than 120 years of littoral boundary law

and Wilson v. Omaha Indian Tribe to

grant the relief Petitioner seeks ........... 16

C. State law was properly adopted here... 18

TABLE OF CONTENTS -— Continued

Page

D. The “common enemy” rule has been re-

jected by courts around the country 19

The new rule Petitioner seeks does not

fairly balance the equities 20

The facts do not support Petitioner’s

argument and do not justify granting

the Petition 21

G. Petitioner can maintain her shore de-

fense structures simply by executing a

new tidelands agreement

Ownership of the Tidelands ......

A. The bases for the Court of Appeals de-

cision

B. The Court of Appeals correctly held

that the doctrine of stare decisis pre-

cludes relitigation of the ownership

NO PE roves cece

C. The courts below followed Jdaho uv.

United States and correctly concluded

that the State of Washington did not

acquire title to the tidelands at state-

hood under the “equal footing” doc-

trine

TABLE OF CONTENTS — Continued

lil. The Rivers and Harbors Act Claim

A. There is no conflict among the lower

courts on the issue of whether the

District Court has discretion to issue

an injunction under the Rivers and

Harbors Act

B. Petitioner left the District Court no

choice but to grant injunctive relief....

Conclusion

Appendices

A. Treaty of Point Elliott

ES 0 App. 14

C. Excerpts from Declaration of Daniel

Nee css rysrpivverscevesconcenss App.

Declaration of Richard Jefferson ............... App. 26

Excerpts from Second Declaration of Daniel

Boxberger

Declaration of James Johannessen .....

State of Washington Department of Ecol-

ogy Website Article on Bulkheads and

their Effects on Tidelands & Tideland-

dependent species.....................6:. Se

TABLE OF AUTHORITIES

CASES

Alaska v. United States (Arctic Coast), 521 U.S.

1 (1997)

Borax Consolidated Lid. v. Los Angeles, 296

U.S. 10 (1935)

California ex rel. State Lands Comm'n

United States, 457 U.S. 273 (1982)

County of St. Clair v. Lovingston,

(1874)

Dames & Moore v. Regan, 45:

Grundy v. Thurston County, 15&

(2005).

Hilton v. South Carolina Public Railways

Comm’n, 502 U.S. 197 (1991)

Idaho v. United States, 533 U.S. 262

CUNT Pin ccosexclesvandecetentanenwareatts

Jefferis v. Hast Omaha Land Co.,

fi.) Rese

Minnesota Mining Co. v. National Mining Co.,

TO UG: Be (RO) vice nesesdascrcesesons

Skokomish Tribe v. France, 320 F.2d 205 (9th

Cir. 1963), cert. denied, 376 U.S. 943 (1964)

State of South Carolina ex rel. Maybank v

South Carolina, Electric & Gas Co., 41

F. Supp. 111 (E.D.8.C. 1941)

United States v. Aarn. 887 F2d 190 (9th Cir.

1989).

Vil

TABLE OF AUTHORITIES — Continued

Page

United States v. Bailey, 467 F.Supp. 925

I I ceric tos Luce Tudaieaucieiy ical coxdedvacaraes 35

United States v. Boynton, 53 F.2d 297 (9th Cir.

United States v. Milner, 583 F.3d 1174 (9th Cir.

2009), Petition for Certiorart filed January 7,

ME ir sccaeuk cs scuasissaueey mua naa clas tee alee un otie in passim

United States v. Romaine, 255 F. 253 (9th Cir.

REET s ninmssvavessalyonssticpstedseiktetaadiatecsaaiaucnaieee 9, 2/

United States v. Stoeco Homes, Inc., 498 F.2d

597 (3rd Cir. 1974), cert. denied, 420 U.S. 927

(1976)....... PAREN de euduenicsaaedeauieh ans toda wusascuamanvenneiaeneniwet 36

United States v. Stotts, 49 F.2d 619 (W.D.Wa.

{| SIR REE Racin prent es SPA p eo p ERAT On HDD SW EONT EON man Tr 9, 27, 28

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

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

1975), cert. denied, 423 U.S. 1086 (1976)............... 30

United States v. Washington, 969 F.2d 752 (9th

Cir. 1992), cert. denied, 507 U.S. 1051 (1993)....9, 28

Wilson v. Omaha Indian Tribe, 442 U.S. 653

Gn Fy | SRR Rs BN pee tie Meas Ae an ah Bote bomen 16, 17, 19

STATUTES, CONSTITUTIONAL PROVISIONS, TREATIES &

EXECUTIVE ORDERS:

ee ee a, NT vise voudicsecenswdatvaneeniea

Executive Order, 12 Stat. 928 (November 22.

Vill

TABLE OF AUTHORITIES — Continued

Page

Rivers and Harbors Act, 33 U.S.C. §401 et seg............ 1

Treaty of Point Elliott, 12 Stat. 927 (1855)...... 1, 30, 31

Washington et al. Statehood Act, Act of Feb. 22,

1889, c. 180, Sec. 4, 25 Stat. S7GE ........cccccccscess passim

Washington Constitution, Article XXVI.......... ee

MISCELLANEOUS

“Bulkheads Can Change the Beach” & “Armor-

ing Effects on Species”, http://www.ecy.wa.gov/

programs/sea/pugetsound/building/bulkhead

CES © GE ikésesisdccebimismaniuuens 3

JURISDICTION

Petitioner correctly states the basis for this

/

Court’s jurisdiction.

TREATY, EXECUTIVE ORDER &

STATUTORY PROVISIONS AT ISSUE

This case involves interpretation of the Treaty of

Point Elliott, an 1873 Executive Order issued by

President Grant, Section 4 of Washington’s statehood

act, and the Rivers and Harbors Act, 33 U.S.C. §401

et seq. The Treaty is set out verbatim in this Brief

starting at page App-l. The Executive Order is set

out verbatim in this brief starting at page App-14.

The text of the relevant provisions of the Rivers and

Harbors Act are set out in Petitioner’s Brief starting

at App-109.

The relevant part of Section 4 of Washington’s

statehood act provides:

Be it enacted by the Senate and the

House of Representatives of the United States

of America in Congress assembled, That the

inhabitants of all that part of the area of the

United States now constituting the Terri

tories of Dakota, Montana and Washington,

as at present described, may become the

States of North Dakota, South Dakota, Mon

tana, and Washington, respectively, as here

inafter provided

bo

Sec. 4. . That the peopie inhabiting

said proposed States to agree and declare

that they forever disclaim all right and title

to the unappropriated public lands lying

within the boundaries thereof, and to all

lands lying within said limits owned or held

by any Indian or Indian Tribes; and that

until the title thereto shall have been

extinguished by the United States, the same

shall be and remain subject to the disposition

of the United States, and said Indian lands

shall remain under the absolute jurisdiction

and control of the Congress of the United

States

Washington et al. Statehood Act, Act of Feb. 22, 1889,

c. 180, Sec. 4, 25 Stat. 676.

ERRORS IN PETITION FOR CERTIORARI

[In accordance with Supreme Court Rule 15(2.),

Lummi notes the following misstatements made by

Petitioner in her Petition:

l Petitioner asserts that Lummi is claiming

‘an unrecognized right to perpetual erosion”. Cert.

Petition at 17. That statement is both incorrect and

misleading. Lummi does not claim a “right to

erosion”. Lummi claims that an adjoining uplands

owner cannot unilaterally alter an inherent aspect of

Lummis title: the natural right to an ambulatory

boundary

2. Petitioner states

[WJhen an upland owner’s property increases

through the deposit of alluvion (or reliction),

it is not at the expense of the tideland owner.

The tidelands simply move (in this case, to

the west) from their former location.

Cert. Petition at 17-18. This statement is both

misleading and factually incorrect. Offshore currents

and other erosive forces may prevent the seaward

boundary of the tidelands from moving offshore when

the upland accretes..This can cause the area of the

tidelands to be diminished on both the Jandward and

the seaward sides when the upland accretes. More-

over, structures such as Petitioner’s bulkhead and

rock rip rap change the natural dynamics of the

beach in many ways that are harmful to the tide-

lands. Bulkheads and other shore-armoring devices

can degrade nearshore habitats that provide food for

fish, including salmon. Spawning areas for certain

species of fish may be lost due to removal of fine

sediments from the intertidal zone. Lummi App-50 to

53; Lummi App-56 to 59. Shore defense structures

can also reduce the amount of shoreline area

available for use by fish, shellfish, marine mammals

and other marine life, and change the slope of the

beach due to the “scouring” effect of bulkheads. /d

When the slope of the beach increases, the area of the

tidelands is reduced, because tidelands are measured

by the intersection of tidal clevations with the slops

of the beach. /d. The District Court specifically found

that Lummi was losing tidelands as a result of

homeowners’ shore defense structure

Here, Defendants’ shore defense Lructure

do not result in merely incidental injury

Rather, these structures deny the United

States and the Lummi Nation land that would

otherwise accrue to them through erosion

Petitioner's App 68

)

3. Petitioner states that her bulkhead and rip

rap were originally erected on her own land, not in

the tidelands. See, C.M:, Cert Pi tition at 2. 6 Although

this possibly is true as to the wooden bulkhead, thers

was conflicting evidence below as to whether Peti

tioner’s rip rap originally was placed above or below

the mean high water mark. The District Court did

not resolve this question, but simply assumed for

purposes of decision that all of Petitioner’s structur:

were onginally placed above the mean high water

mark, and that erosion of the beach in the area of the

rip rap had resulted in some of the rocks being

located below mean high water. Petitioner's App-65

4 Petitioner tates that mean high water

“intersects Homeowners riprap during some period

and not during others’. Cert. Petition at 6. Lumm

has not heen able to find any evidence the recor

below that support thi tatement

dence in the record on the location of the Petits

riprap in relation to mean high water i

irvey sub! ted by Vila vhicl

portion of Petitioner's rip rap

high water. ER 23] at page ©

5. Petitioner asserts that she was not a membe!

of the Sandy Point homeowner's association that

executed the tidelands lease. Cert. Petition at page 10

n. 4. Lummi has not been able to find any evidence in

the record below to support this statement. Moreover

Petitioner's statement is misleading. Petitioner dos

not, and cannot, dispute that the tidelands adjacent

to her home were included in the 1963 tidelands

lease, Lummi App 29 to 37, and she admits that she

and her predecessor in title erected a seawall and

placed rip rap on the beach both during the term of

the Lease, and after it expired. Cert. Petition at 5-6

Whether Petitioner was a member of the Sandy Point

homeowner's association is trrelevant

6 Petitioner claims that the Court of Appeal

criticize|d|] the Homeowners for failing to reach a

settlement with the Lummi Nation”, and asserts that

this criticism was “outrageous. Cert. Fetition at 10

However, the statements to which Petitioner refer

were not critical of Petitioner. At Petitioner's App-28&

the Court of Appeals mere!y pointed out that its rul

claim dia not nec aril requir:

hore defense

new lease with Lummi, and Lummi was willing to

accommodate them. At Petitioner's App-44, the Court

of Appeals pointed out that it had no choice but to

rule on the merits since the parties were unable to

reach an agreement. here is nothing outrageou

about either of these statement:

STATEMENT OF THE CASE

his case presents no issues meriting review by

this Court. The courts below applied well-settled

rules governing littoral boundaries and ownership of

lands reserved to Indian Tribes to a set of unique

facts involving a small Indian Reservation on the

coa of Washington state. Petitioner is simply un

result the law requires her to accept

,. Overview.

Petitioner is the ov r waterfront vacation

within the Sandy Point development, located on

immi Keservation near Bellingham, Washing

In 1963. a homeowners association leased the

yy" ’ i 7 — . D, fr } > I >

surrounding anay «ont trom tne umm)

Lummi he lease included the tideland:

to Petitioner's vacation home. As required by

t? had :

bulkheads on the beach to protect their property. The

lease also required the landowners to remove those

structures if the lease should ever expire without

renewal

During the term of the lease many Sandy Point

homeowners erected bulkheads or seawalls and

placed large rocks on the beach. Petitioner's prede

cessor in title erected a wooden bulkhead in 1977

Petitioner purchased her home in 1980. She added

rock rip rap seaward of the bulkhead in 1982 and

again in 1993. Rip rap consists of irregularly shaped

rocks of varying size that are placed in an array in

front of a structure or shore bank. Seawater that

would otherwise strike the structure or bank first

encounters the jumble of rock, which dissipates some

of the force of the water by breaking up the waves

and allowing the water to flow into the spaces among

the rocks

Over the years, the Sandy Point shoreline has

eroded, in part because the structures erected by the

Sandy Point owners themselves tend to create a

‘scouring’ action that carries sand away from the

beach. It is uncontested that Petitioner's rip rap wa

no later than 2002, seaward of the mean high wate:

mark and therefore within Lummi’s tidelands

‘he tidelands lease expired in 1988, and Lumm:

repeated offers to renew it were rejected. In March

1988, the Lummi Nation se a letter to the Home

whners, informing them | that the

piring. and (2) that if thev elected not t

option to renew the lease, any encroaching shore

defense structures would have to be removed. Years of

fruitless discussion followed, during which time

Petitioner reinforced her rip rap by adding additional

rock. Cert. Petition at 6. In January 2001, the United

States sent a letter informing Homeowners that they

would be sued if they did not remove their rip rap.

When they refused, the United States filed suit in the

District Court for the western district of Washington,

alleging, inter alia, a trespass claim and a violation of

the RHA. Lummi intervened as a Plaintiff, to protect

its interests in the tidelands.

B. Rulings Below on the Trespass Claim.

Both the District Court and the Court of Appeals

ruled in favor of Lummi and the United states on the

trespass claim. The Court of Appeals began its

analysis by reaffirming that the tidelands adjacent to

the Lummi Reservation were reserved to the United

States in trust for Lummi:

Prior quiet title actions make clear that

President Grant’s executive order was suf-

ficient to prevent ownership from passing to

Washington. In United States v. Romaine,

the United States sought to quiet title

against individuals who had bought Lummi

tidelands from the state of Washington. 255

F. 253, 253 (9th Cir. 1919). This court held

the president’s executive order to be decisive

and rejected an argument that the reser-

vation extended only to the high-water mark.

Ss

Id. at 259-60. Romaine noted that when

Washington was admitted as a state, it dis-

claimed any right and title

to all lands lying within said limits

owned or held by any Indian or Indian

tribes; and that until the title thereto

shall have been extinguished by the

United States, the same shall be and

remain subject to the disposition of the

United States and said Indian lands

shall remain under the absolute juris

diction and control of the Congress of the

United States.

Id. at 260 (quoting Act of Feb. 22, 1889, ch. 180, §4

25 Stat. 676, 677). United States v. Milner, 583 F.3d

1174, 1184 (9th Cir. 2009). The Court of Appeals went

on to discuss United States v. Stotts, 49 F.2d 619

(W.D.Wa. 1930), which quieted title to the Lummi

tidelands in the United States, and United States v.

lashington, 969 F.2d 752, 755-56 (9th Cir. 1992),

where the “the state [of Washington] took the position

that the Lummi reservation extends to the low-tide

line and did not claim the tidelands.” Milner, 583

F.3d at 1184. After noting that the state of Washing-

ton had expressly declined to claim ownership of the

tidelands and intervene in the present case, the Court

of Appeals pointed out that stare decisis “applies with

special force to decisions affecting title to land” and

concluded that there was “no reason ... to overturn

90 years of precedent, especially when the supposed

title holder has declined to claim ownership”. Id. at

1185. The Court of Appeals rejected Petitioner’s

10

argument that the State of Washington acquired

ownership of the tidelands at statehood under the

“equal footing” doctrine. /d. at 1185-86.

After confirming title in the United States, the

courts below applied the well-settled rule that the

boundary between upland and tideland is ambu-

latory, moving as the shoreline accretes and erodes.

083 F.3d at 1187. The Court of Appeals pointed out

that the mght to an ambuiatory boundary is a vested

property right:

[Bjoth the tideland owner and the upland

owner have a right to an ambulatory bound-

ary, and each has a vested right in the

potential gains that accrue from the move-

ment of the boundary line. The relationship

between the tideland and upland owners is

reciprocal: any loss experienced by one is a

gain made by the other, and it would be

inherently unfair to the tideland owner to

privilege the forces of accretion over those of

erosion. Indeed, the fairness rationale under-

lying courts’ adoption of the rule of accretion

assumes that uplands already are subject to

erosion for which the owner otherwise has no

remedy.

Id. at 1188.

The Court of Appeals specifically followed the

rule set out in County of St. Clair v. Lovingston,

90 U.S. 46, 68-69 (1874):

The mparian right to future alluvion is a

vested right. It is an inherent and essential

1]

attribute of the original property. The title to

the increment rests in the law of nature. It is

the same with that of the owncr of a tree to

its fruits, and of the owner of flocks and

herds to their natural increase. The right is a

natural, not a civil one. The maxim ‘qui

sentit onus debet sentire commodum’ lies at

its foundation. The owner takes the chances

of injury and of benefit arising from the

situation of the property.

It is this inherent and essential attribute that Peti-

tioner now asks this Court to change.

The courts below rejected Petitioner’s argument

that she had somehow “fixed” the ambulatory bound-

ary when she erected her shore defense structures:

The Homeowners have the right to build

on their property and to erect structures to

defend against erosion and storm damage,

but all property owners are subject to limi-

tations in how they use their property. The

Homeowners cannot use their land in a way

that would harm the Lummi’s interest in the

neighboring tidelands. Given that the

Lummi have a vested right to the ambu-

latory boundary and to the tidelands they

would gain if the boundary were allowed to

ambulate, the Homeowners do not have the

right to permanently fix the property bound-

ary absent consent from the United States or

the Lummi Nation. The Lummi similarly

could not erect structures on the tidelands

that would permanently fix the boundary

12

and prevent accretion benefitting the Home-

Owners.

Id. at 1189-90. The Court of Appeals also rejected the

argument that the “common enemy” doctrine allows

an upland owner to “fix” the boundary. 583 F.3d at

1188-89.

Based on the foregoing, the courts below con-

cluded that Petitioner’s rock rip rap was encroaching

on Lummi’s tidelands, 583 F.3d at 1191, and would

have to be removed unless Petitioner entered into a

new agreement with Lummi.

C. Rulings Below on the Rivers and Harbors

Act Claim.

The courts below held that Petitioner had vio-

lated the Rivers and Harbors Act by failing to remove

her rip rap from the navigable waters of the United

States. 583 F.3d at 1191-94. Lummi was not involved

in this claim.

D. Petitioner’s Appeal.

All of the Homeowner-Defendants except Peti-

tioner have either executed, or are in the process of

negotiating, new tideland use agreements with the

Lummi Nation. Petitioner alone seeks review by the

Supreme Court of the rulings cn both the trespass

and RHA claims.

I,

13

REASONS FOR DENYING

THE WRIT OF CERTIORARI

The Trespass Claim.

One hundred and twenty years ago, this Court

held:

Where a water line is the boundary of a

given lot, that line, no matter how it shifts,

remains the boundary; and a deed describing

the lot by number or name conveys the land

up to such shifting water line, exactly as it

does up to the fixed side lines; so that, as

long as the doctrine of accretion applies, the

water line, nc matter how much it may shift,

if named as the boundary, continues to be the

boundary, and a deed of the lot carries all the

land up to the water line.

Jefferis v. East Omaha Land Co., 134 U.S. 178,

188 (1890). The Court of Appeals faithfully followed

this principle:

Under the common law, the _ boundary

between the tidelands and the uplands is

ambulatory; that is, 1t changes when the

water body shifts course or changes in

volume. See Jefferis v. East Omaha Land

Co., 134 U.S. 178, 189, 10 S.Ct. 518, 33 L.Ed.

872 (1890); California ex rel. State Lands

Comm'n v. United States, 805 F.2d 857, 864

(9th Cir. 1986); United States v. Boynton,

53 F.2d 297, 298 (9th Cir. 1931). The uplands

owner loses title in favor of the tideland

owner — often the state — when land is lost

to the sea by erosion or submergence. The

14

converse of this proposition is that the

littoral property owner gains when land is

gradually added through accretion, the

accumulation of deposits, or reliction, the

exposure of previously submerged land. See

County of St. Clair [v. Lovingston], 90

U.S. at 68-69, 23 Wall. 46; Jefferis, 134 U.S.

at 189, 10 S.Ct. 518; 65 C.J.S. Navigable

Waters § 95 (2009). These rules date back to

Roman times, and have been noted in

Blackstone’s Commentaries and many other

common law authorities and cases.

583 F.3d at 1187.

Petitioner does not cite any authority holding to

the contrary, and cannot dispute that this has been

the law for at least 120 years. Instead, she asks this

Court to overrule this long-standing precedent and

create a new rule that an uplands owner can, by

erecting shore defense structures, unilaterally de-

prive the tideland owner of its vested right to the

benefits that may accrue from an ambulatory bound-

ary. For a multitude of reasons, this Court should

refuse to entertain Petitioner’s request.

A. The Court of Appeals decision is very

limited in scope and impact.

Contrary to the cries of alarm and doom that

fill Ms. Sharp’s Petition, the factual context of this

case iS unique. The case presents a federal question

only because it involves tidelands beneficially owned

by an Indian tribe within an established Indian

L5

Reservation. That situation is not even typical of

Indian Reservations located in western Washington

state. Compare United States v. Aam, 887 F.2d 190,

196-97 (9th Cir. 1989) (tidelands not included in

Suquamish reservation) and Skokomish Tribe v.

France, 320 F.2d 205, 210 (9th Cir. 1963), cert.

dented, 376 U.S. 943 (1964) (tidelands not included

in Skokomish reservation). To the best of Lummi’s

knowledge, no comparable facts exist in “the entire

City of New Orleans, Boston’s Back Bay, major

portions of San Francisco, San Jose and Seattle” as

Petitioner theorizes. Cert. Petition at 14.

Contrary to Petitioner’s assertion, Cert. Petition

at 12 n. 6, where tidelands owned by the State or

private persons are involved, state law will determine

the incidents and consequences of property owner-

ship, including doctrines such as adverse possession

that can be used to stabilize titles where fill and

bulkheads have been placed in privately owned

tidelands or tidelands owned by the State. See, e.g.,

Borax Consolidated Ltd. v. Los Angeles, 296 U.S.

10, 22 (1935) (“Rights and interests in the tideland,

which is subject to the sovereignty of the State, are

matters of local law.”) As to land where title is held by

or derived from the United States, state law will often

be borrowed as the rule of decision:

Controversies governed by federal law do not

inevitably require resort to uniform federal

rules. It may be determined as a matter of

choice of law that, although federal law

should govern a given question, state law

16

Should be borrowed and applied as_ the

federal rule for deciding the substantive

legal issue at hand.

California ex rel. State Lands Comm’n v. United

States, 457 U.S. 273, 283 (1982) (citations omitted).

Only in the rare case will local law not govern, and

the Court of Appeals decision below therefore will

necessarily have very limited application elsewhere.

B. The Court would have to overrule more

than 120 years of littoral buundary law

and Wilson v. Omaha Indian Tribe to

grant the relief Petitioner seeks.

Petitioner concedes that Wilson v. Omaha

Indian Tribe, 442 U.S. 653, 678 (1979), mandates

consideration of state law in real property cases on

Indian reservations, and that the Washington

Supreme Court has expressly rejected the common

enemy doctrine where sea water is involved. Grundy

v. Thurston County, 155 Wn.2d 1, 10 (2005).’

“ In Wilson, the Court held that the local law (there, the

law of Nebraska) of accretion and avulsion should be considered

when deciding whether the Omaha Tribe or the State of

Nebraska owned certain riparian land on the Omaha Reserva-

tion. The Court reasoned that, although the determination of

titles to reservation lands is a matter of federal law, “federal law

should incorporate the applicable state property law to resolve

the dispute”, 442 U.S. at 678, unless an overriding federal

interest requires use of a uniform federal rule.

' In Grundy, the owner of land on the coast increased the

height of a seawall, which in turn caused seawater to surge onto

(Continued on following page)

17

Nonetheless, Petitioner appears to ask this Court to

(1) adopt the common enemy doctrine as a matter of

federal common law and (2) apply that new rule here.

In order to do so, this Court would have to overrule

Wilson and its progeny, as well as the long line of

cases holding that the boundary between upland and

tideland is ambulatory.

The Court would also have to contort the logic

behind the common enemy doctrine. As the Court of

Appeals explained, the “common enemy” doctrine

does not fit in the context of littoral boundaries:

On the one hand, the injury complained of is

not the diversion of water onto the tidelands;

rather, it is the physical encroachment of the

shore defense structures themselves.... On

the other hand, the rule is inapposite

because the water is not acting as a “common

enemy’ of the parties involved. The tide line

is an inherent attribute of the properties at

issue, since it dictates where the tidelands

end and the uplands begin. That the bound-

ary is ambulatory does not make it a com

mon enemy, since any movement seaward or

landward is to the benefit of one partv and

the detriment of the other.

a neighbor’s land. After the neighbor filed a private nuisance

action, the owner asserted a “common enemy” defense, claiming

a right to deflect sea water by any means. The Washington

Supreme Court rejected the defense, and held that the common

enemy doctrine did not apply to seawater. 155 Wn.2d at 10

1s

583 F.3d at 1189. Where erosion and accretion are

natural and normal events that affect property

houndaries. the action of the water is neither an

“enemy” common to both parcels nor the type of

extraordinary event to which the doctrine is

applicable. Indeed, the ambulatory boundary can

been seen as a “friend” to the property owner who

receives the accretion

C. State law was properly adopted here.

Petitioner does not explain why it was error for

the Court of Appeals to adopt state law as the rule of

decision; she just asks this Court to establish a

different federal rule. However, this Court has

already rejected the argument that a uniform federal

rule is necessary in cases such as this:

|W Je perceive no need for a uniform national

rule to determine whether changes in the

course of a river affecting riparian land

owned or possessed by the United States or

by an Indian tribe have been avulsive or

accretive. For this purpose, we see little

reason why federal interests should not be

treated under the same rules of property

that apply to private persons hcelding prop-

erty in the same area by virtue of State,

rather than federal, law.... We should nol

accept “generalized pleas for uniformity

as substitutes for concrete evidence that

adopting State law would adversely

affect [federal interests/.”

19

Wilson, 442 U.S. at 673 (emphasis added; citation

omitted). Petitioner has not identified any federal

interests that might be adversely affected by refusing

to apply the “common enemy’ doctrine to seawater,

nor are there any obvious ones ,

D. The “common enemy” rule has been

rejected by courts around the country.

Petitioner asserts that the Court of Appeals

“announced a startling change in the common law’

when it refused to apply the “common enemy”

doctrine. Cert. Petition at 15. That is not true. As the

Court of Appeals pointed out, courts all around the

country have rejected the “common enemy’ doctrine

Many jurisdictions have dispensed with the

lcommon enemy! doctrine altogether and

instead apply a rule of reasonableness, under

which “each possessor is legally privileged to

make a reasonable use of his land, even

though the flow of surface waters is altered

thereby and causes some harm to others, but

incurs liability when his harmful inter

ference with the flow of surface waters is un

reasonable.” /String citation omitted.]/ While

Washington has retained the doctrine, it has

modified the rule so that property owners

In California ex rel. State Lands Comm’n v, United

States, 457 U.S. 273 (1982), the Court followed Wilson, but

concluded that significant federal interests present in that case

militated in favor of application of a federal rule that differed

from state law. That is not true here

2U

must exercise due care by “acting in good

faith and avoiding unnecessary damage to

the property of others,” /citation omitted/ and

by making the rule inapplicable to sea water

Grundy, 117 P.3d at 1094. It is far from clear,

then, that the common enemy rule, as advo-

cated by Homeowners, 1s even the dominant

View

Kk. The new rule Petitioner seeks does

not fairly balance the equities.

Implicit in Petitioner’s request for a new rule of

law is the notion that her use of the uplands for a

vacation home is more valuable than the uses to

which the tidelands may be put. Lummi strongly

disagrees, for the reasons stated by the Court olf

Appeals in its decision below:

W le decline to hold that the use of upland

is inherently more valuable than the use to

which tidelands can be put. As was already

noted, the tidelands have played an im-

portant role in the Lummiu’s traditional way

of life, and in most other areas, the tidelands

are held by the state in trust for the public

See Illinois Central R.R. Co. v. Illinois,

146 U.S. 387, 436-37, 13 S.Ct. 110, 36 L.Ed

1018 (1892). These interests are substantial,

and the uses they represent are not ob-

viously less productive. See Shively ov.

Bowlby, 152 U.S. 1, 57, 14 8S.Ct. 548, 38

L.Ed. 331 (1894) ({Lands under tide waters|

21

are of great value to the public for the

purposes of commerce, navigation, and

fishery. Their improvement by individuals,

when permitted, is incidental or subordinate

to the public use and right.)

983 F.3d at 1188. The uplands and tidelands both

have value, and the rule applied by the courts below

recognizes that important fact. There is no reason to

grant review.

lr’. The facts do not support Petitioner’s

argument and do not justify granting

the Petition.

Petitioner claims that the Court of Appeals

“assume|d}] that the property line |between upland

and tideland| ignores the existing structure and,

instead, permeates it and places the boundary as

if the structure had never existed.” Cert. Petition at

16. However, insofar as Petitioner’s rip rap is con

cerned, this was not an assumption, because Peti

tioner’s rip rap does not, in fact, form a solid barrier

against the sea. The rocks are irregularly sized and

shaped. There are spaces between them. The tide still

flows around them, through the spaces. between

them, and beyond the rocks themselves. Thus, Peti

tioners rip rap does not stop the tide and does not

arrest the boundary. The boundary between Peti-

tioners uplands and Lummi’s tidelands remains

ambulatory as a matter of fact to this day. Thus, even

if there were some merit to the argument that an

impermeable barrier to the sea “fixes” the boundary

I

) 9

line, Petitioner would not be entitled to the benefit of

such a rule under the facts of this case.

G. Petitioner can maintain her shore de-

fense structures simply by executing a

new tidelands agreement.

Petitioner tries to create the impression that she

will lose her vacation home to the sea _ unless

certiorari is granted. However, Lummi has always

remained ready and willing to enter into a new

tidelands agreement with Petitioner, which would

permit Petitioner to maintain and improve her shore

defense structures as needed. The sea may eventually

take Petitioner’s vacation home, but only as a result

of natural forces and Petitioner’s refusal to take a

readily available alternative to protect her own

interests to the extent possible.

Petitioner claims that she has “always been

willing to pay the tideland owner for the fair market

value” of the tidelands she is using, but she couples

that assertion with her claim that Washington state

is the true tideland owner. Cert. Petition at 11 n. 5. In

any event, that assertion is not supported by the

record below, nor was any evidence introduced below

as to what constitutes “fair market value” in this

Case.

Petitioner seems to think that she is entitled to

decide what price Lummi should charge for the use

of its property. Cert. Petition at 10-11. To the contrary,

Lummi is free to charge whatever it deems

23

reasonable, taking into account the benefit Petitioner

derives from her use of the tidelands, the consequent

loss of use Lummi will suffer, Lummi’s reliance on

fisheries, and the adverse effect shore defense struc-

tures have on fish habitat. Petitioner’s suggestion

that Lummi is asking a confiscatory amount of rent is

rebutted by the fact that other tideland owners have

accepted Lummi’s terms. Indeed, resolution of this

dispute by agreement would likely promote Peti-

tioner’s property values.

The decisions of the courts below on the trespass

claim do not present any new or novel questions, are

consistent with well-settled law, and have limited

application elsewhere. In order to give Petitioner the

relief she seeks, this Court would have to overrule

120 years of established precedent, and apply a

common law rule that is being widely rejected by the

courts. There is no reason to grant certiorari as to the

trespass claim.

II. Ownership of the Tidelands.

The courts below concluded that the tidelands

within the Lummi Reservation are owned by the

United States in trust for Lummi, not by the State of

Washington under the “equal footing” doctrine.

Petitioner asks this Court to grant certiorari because

this ruling was contrary to prior decisions of this

Court. Cert. Petition at 33, 35, 36. This request should

be denied, because Petitioner has failed to demon-

strate that the Court of Appeals created new law or

24

that a conflict exists among the circuits. She argues

only that the courts below incorrectly concluded that

the equal footing doctrine had been satisfied. That is

per se insufficient to justify review by this Court.

A. The bases for the Court of Appeals de-

cision.

As a preliminary matter, Petitioner claims that

there were three bases for the Court of Appeals

decision on the ownership issue, Cert. letition at 34,

when in fact there were only two. The Court of

Appeals held:

1. The ownership issue has been decided in

favor of Lummi and the United States in

three prior Ninth Circuit cases, and the

doctrine of stare decisis, which applies

with extra force in the case of issues

affecting property titles, militates against

revisiting that issue at this late date.

583 F.3d at 1183-1185.

Even if the ownership issue were re-

visited, it would be decided the same

way under present “equal footing”

caselaw. 583 F.3d at 1185-1186.

Petitioner claims that the Court of Appeals also

relied on the fact that the State of Washington was

not a party to the proceeding. Cert. Petition at 35.

That is not true. The Court of Appeals expressly ruled

in Petitioner’s favor on this point, holding that

25

Petitioner was free to assert that the State owned the

tidelands:

The United States argues that the Home-

owners cannot assert Washington state’s title

in the tidelands because in a trespass action

“(title in a third person may not be alleged

by a defendant who is not in privity of title

with the third person”, and the Homeowners

do not claim to be in privity with the

state.... However, this applies where the

plaintiff is the one in possession and, in

moving for partial summary judgment on the

issue of ownership, the United States did not

present evidence showing that it or the

Lummi Nation was currently in possession of

the tidelands.

583 F.3d at 1183 n. 7.

By noting this holding, Lummi does not concede that the

conclusion by the Court of Appeals was correct. The State of

Washington is certainly bound by the quiet title decisions in the

prior cases. It is difficult to see how Petitioner’s ability to litigate

the ownership issue could be preater than the entity she claims

to be the owner. Nonetheless, the Court of Appeals did allow

Petitioner to argue in favor of state ownership even though the

state was not a party to the case and had declined to assert

ownership in its own right.

26

The Court of Appeals correctly held

that the doctrine of stare decisis pre-

cludes relitigation of the ownership

issue here.

The doctrine of stare decisis, which precludes

relitigation of issues previously decided, applies with

special force in proceedings involving title to land:

Where questions arise which affect titles

to land it is of great importance to the public

that when they are once decided they should

no longer be considered open. Such decisions

become rules of property, and many titles

may be injuriously affected by their change.

Legislatures may alter or change their laws,

without injury, as they affect the future only;

but where courts vacillate and overrule their

own decisions on the construction of statutes

affecting the title to real property, their

decisions are retrospective and may affect

titles purchased on the faith of their

stability. Doubtful questions on subjects of

this nature, when once decided, should be

considered no longer doubtful or subject to

change. Parties should not be encouraged to

speculate on a change of the law when the

administrators of it change. Courts ought not

to be compelled to bear the infliction of

repeated arguments by obstinate litigants,

challenging the justice of their well-

considered and solemn judgments.

Minnesota Mining Co. v. National Mining Co.,

U.S. 332, 334 (1865).

Here, Petitioner admits, as she must, that there

are three prior cases expressly holding that the

United States owns the Reservation tidelands in trust

for Lummi. Cert. Petition at 34 n. 15. In United

States v. Romaine, 255 F. 253 (9th Cir. 1919), the

Court of Appeals rejected the argument that the State

of Washington succeeded to title of tidelands on the

perimeter of the Lummi Reservation by virtue of the

“equal footing” doctrine, and held that the United

States holds title in trust for Lummi. Petitioner

attempts to distinguish Romaine on the grounds

that different tidelands, which were’ expressly

reserved in the Treaty of Point Elliot, were at issue

there. However, the Romaine court did not reject the

equal footing dcectrine as a source of state title on the

grounds that the specific lands in question were part

of the island reserved in the Treaty. It rejected the

equal footing doctrine because the Executive Order

reserved all the tidelands described therein from the

state for an appropriate public purpose (creation of an

Indian Reservation). Additionally, it held that

Congress approved the reservation when it required

Washington to forever disclaim all right and title to

“all lands lying within said limits owned or held by

any Indian or Indian tribes” when Washington was

admitted to the Union. Act of Feb. 22, 1889, c. 180,

Sec. 4, 25 Stat. 676, cited in Romaine, 255 F. at 260.

Romaine unquestionably resolved the issue Peti-

tioner attempts to raise here.

United States v. Stotts, 49 F.2d 619 (W.D.Wash.

1930), was the second case to hold that the United

28

States holds title to the Lummi tidelands. Petitioner

claims that Stotts is inapposite because “it is not

clear where the tidelands in that case were located or

whether they were reserved by the Executive Order

alone.” Cert. Petition at 35 n. 15. However, the

evidence below conclusively proved that the lands at

issue were located along Sandy Point, in the portion

of the Reservation added by the 1873 Executive

Order. Lummi App-15, 20-21.

In United States v. Washington, 969 F.2d 752,

753 (9th Cir. 1992), cert. denied, 507 U.S. 1051 (1993),

the State of Washington conceded that it has no claim

to the lands above the low water mark. Petitioner

attempts to distinguish this case as well, but even

Petitioner cannot dispute that the State of Washing-

ton made the concession relied upon by the Court of

Appeals.”

Given (1) that no less than three prior cases’

have held that the United States, not the State of

* The State also declined an invitation by the Homeowners

to intervene in the present proceeding to assert State title to the

tidelands.

” Only a year after Stotts was decided, the Court of Appeals

issued a decision in yet another quiet title case involving Lummi

Reservation tidelands. In United States v. Boynton, 53 F.2d

297 (9th Cir. 1931), the defendant generally conceded tribal

ownership of the tidelands, arguing only that the meander line

of the upland surveys was a fixed boundary line, which was not

affected by subsequent erosion or accretion. The Court of

Appeals rejected that contention, as did the courts in the present

CaSe

YO

Washington, owns the tidelands on the Lummi

Reservation, and (2) that the State of Washington

accepts that ruling and no longer claims ownership of

the tidelands, the Court of Appeals correctly applied

the doctrine of stare decisis. Petitioner now asks this

Court to overturn a ruling that has stood for over 90

years, and upon which the United States, the Lummi

Nation, and the State of Washington have relied to

conduct their affairs, without giving any reason for

the Court to do so. Stare decisis cannot be so easily

ignored:

Time and time again, this Court has

recognized that “the doctrine of stare decisis

is of fundamental importance to the rule of

law.” [Citations omitted./ Adherence to prece-

dent promotes stability, predictability, and

respect for judicial authority.... [Wle will

not depart from the doctrine of stare decisis

without some compelling justification

Hilton v. South Carolina Public Railways

Comm’n, 502 U.S. 197, 202 (1991). There is no such

justification here.

C. The courts below followed Idaho uv.

United States and correctly concluded

that the State of Washington did not

acquire title to the tidelands at state-

hood under the “equal footing” doc-

trine.

Petitioner admits that the Court of Appeals

correctly relied on the two-part test from Idaho v.

30

United States, 533 U.S. 262 (2001), and similar

cases, to determine whether the tidelands passed to

the State of Washington under the “equal footing”

doctrine. Cert. Petition at 36. That test is:

(1) Whether there was an intent to include

land under navigable waters within the

federal reservation, and

(2) If so, whether Congress intended to

defeat the future State’s title to the

submerged lands.

533 U.S. at 273 (emphasis added).

Petitioner concedes, as she must, that the first

part of the test is satisfied: the tidelands were

expressly included in the legal description in the

Executive Order that created the Lummi Keserva-

tion. Petitioner objects only to the rulings on the

second part of the Idaho test. Petitioner’s objections

are not well-taken.

The Lummi Reservation was created by the

Treaty of Point Elliott, 72 Stat. 927. Congress was

aware of the importance of fishing to the Northwest

Indians like Lummi, because the Treaty reserved an

exclusive right of fishing for the Tribes within the

area and boundary waters of their reservations, as

well as reserving to the Tribes the right to off-

reservation fishing “at all usual and accustomed

grounds and stations”. United States v. Washing-

ton, 384 F. Supp. 312, 332 (W.D. Wa. 1974), aff’d, 520

F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086

(1976). Given the central role of the beaches in tribal

3]

life, the universal dependence of the Lummis on

tideland resources, and the fact that many of the

allotments authorized by the Treaty would be located

away from the beaches, Lummi App-41 to 47, Indian

ownership and use of the beaches was necessary for

the Reservation to be successful. The Treaty set aside

all the lands within the Reservation for the Indians’

“exclusive use; nor shall any white man be permitted

to reside upon the same without permission of the

said tribes or bands,” 12 Stat. 927 at Art. 2.

Article 7 of the Treaty provided that the

“President may hereafter, when in his opinion the

interests of the Territory shall require and the

welfare of the said Indians be promoted, remove them

from either or all of the special reservations herein-

before made to ... such other suitable place within

said Territory as he may deem fit.” 72 Stat. 927 at

Art. 7. Congress approved the discretionary power

that Article 7 conferred on the President when it

ratified the Treaty in 1859. “When the President acts

pursuant to an express or implied authorization from

Congress, he exercises not only his powers but also

those delegated by Congress.” Dames & Moore v.

Regan, 453 U.S. 654, 668 (1981).

In 1873, President Grant exercised his delegated

power to add the Sandy Point area to the Reservation

and to make it plain that the Reservation boundary

extended to “the low water mark on the Gulf of

Georgia”, explicitly encompassing the tidelands at

issue here. Executive Order, 12 Stat. 928. If there

were no intent to include the _ tidelands, the

description would have run to the high water mark,

which is the landward boundary of tidelands. And

there was no reason to include tidelands at the edge

of the Reservation if there was no intention to reserve

those tidelands for the future use of the Indians

Since President Crant’s intent to reserve the

Lummi tidelands for the sole benefit of the Indians

was “made plain” from the face of the Executive

Order, the Executive Order “placed Congress on

notice that the President had construed his reser-

vation authority to extend to submerged lands and

had exercised that authority to set aside ... sub-

merged lands in the Reserve”. See Alaska v. United

States (Arctic Coast), 521 U.S. 1, 45 (1997). When

the State of Washington was admitted to the Union in

1889, Congress required the State, as a condition of

statehood, to disclaim any interest in any lands

“owned or held by any Indian or Indian Tribe” until

the United States had extinguished the Indians’ title

Act of Feb. 22, 1889, c. 180, Sec. 4, 25 Stat. 676."

* The Executive Order expressly noted that much of the

land within the legal description was “a part of the island

already set apart by the second article of the treaty”. 12 Stat.

928.

' “The State of Washington shal!) forever disclaim al! right

and title... to all lands within said limits owned or held by any

Indian or Indian tribe; and that until the title thereto shall have

been extinguished by the United States, the same shall be and

remain subject to the disposition of the United States, and said

(Continucd on following page)

There would have been no reason for Congress to

require the new state to disclaim interests in sub

merged lands on Indian reservations unless Congress

intended to continue President Grant's reservation of

those tidelands for the benefit of the Tribes.

Petitioner argues that the Court of Appeals made

“a radical departure from this Court’s jurisprudence”

by relying on allegedly “boilerplate” disclaimer lan

; ; B B }

guage in Washington’s statehood act. Cert. Petition at

36. However, as Petitioner admits in a footnote, the

Idaho Court relied in part on a similar “boilerplate”

disclaimer to find that the United States, not the

State of Idaho, owned submerged lands on the Coeur

d’Alene reservation in trust for the Coeur d’Alene

Tribe. Cert. Petition at 37 n. 18. And in Arctic Coast,

the Court considered similarly broad language in a

proviso that related to unnamed wildlife refuges:

“{provided] [t]hat such transfer shall not include

lands withdrawn or otherwise set apart as refuges or

reservations for the protection of wildlife.... ” 521

U.S. at 55. Petitioner claims that Arctic Coast sup-

ports her position, but does not explain how this

generalized reference to “lands withdrawn or other-

wise sel apart as wildlife refuges” is any more specific

Indian lands shall remain under the absolute jurisdiction and

control of the Congress of the United States.” Act of Feb. 22,

IS89, c. 180, Sec. 4, 25 Stat. 676. Parallel language was included

in Washington's Constitution, Art. XXVI, as required by the

Kinabling Act

Congress included similar disclaimers in several statutes

admitting other states to the Union

than “lands owned or held by Indians or Indian

tribe ;””

But even if prior decisions of this Court had not

given effect to “boilerplate” disclaimers, the federal

courts are not free to ignore statutory language

simply because Congress has used it frequently. The

focus of the inquiry should be on whether the

meaning of the language is clear and the application

of the language to the situation is certain. While

there undoubtedly could be situations where it might

be difficult to know whether specific lands were in

fact “owned or held by an Indian or Indian tribe” at

the time of statehood, this is not such a case. Jdaho

and Arctic Coast control here, and there is no need

to grant certiorarn to address this issue yet again

Ill. The Rivers and Harbors Act Claim.

Lummi did not participate in this claim below,

and therefore does not respond to the Petition for

Certiorari on this claim, except as to the propriety of

the injunction issued by the District Court

A. There is no conflict among the lower

courts on the issue of whether the

District Court has discretion to issue

an injunction under the Rivers and

Harbors Act.

Petitioner claims that the Court of Appeals held

that an injunction is “automatic” when the RHA has

been violated. Cert. Petition at 31. That is not true.

The District Court's issuance of the injunction was

clearly an exercise of discretion, and the Court of

Appeals held that the District Court did not abuse its

discretion. 583 F.3d at 1193-94. The District Court

issued the injunction only after considering a number

of factors, including the nature of the interest to be

protected, the degree and kind of wrong, and the

practicability of the remedy. Petitioner’s App-60 to 70

Petitioner also argues that the District Court

should have balanced the equities before issuing the

injunction. Cert. Petition at 31 to 32. However, none of

the cases cited by Petitioner require the courts to do

so before issuing an injunction under §406 of the

RHA. State of South Carolina ex rel. Maybank v.

South Carolina Electric & Gas Co., 41 F. Supp.

L111, 118-19 (E.D.S8.C. 1941), held only that the issu-

ance of an injunction under the RHA is discretionary:

When section 406 provides that the

removal of prohibited structures ‘may be

enforced by the injunction of any district

court’... , the Congress intended that

the district court ... should exercise discre

tion in each instance in determining

whether an injunction should be granted.

The Congress did not intend that it should be

mandatory ... on the district court to grant

an injunction in every suit.

In United States v. Bailey, 467 F. Supp. 925 (2.D.Ark.

1979), the district court exercised its discretion to

deny injunctive relief based on inequitable con-

duct by the United States. Neither case mentions

36

balancing the equities, and United States v. Stoeco

Homes, Inc., 498 F.2d 597, 611 (3rd Cir. 1974),

expressly holds that balancing the equities is not

required:

No balancing of interest or need to show

irreparable injury is required when an

injunction is sought under §12 [of the RHA]

to prevent erection or seek removal of an

unlawful structure.

There is no conflict for this Court to resolve.

B. Petitioner left the District Court no

choice but to grant injunctive relief.

As noted in the preceding paragraph, Congress

intended to give the district courts discretion when it

came to issuing injunctions under the RHA. Here, the

District Court exercised its discretion to grant in-

junctive relief requiring Petitioner to remove her

encroaching shore defense structures. This exercise of

discretion was more than reasonable, given Peti-

tioner’s inequitable conduct here. Petitioner placed

shore defense structures on Lummi’s tidelands during

the term of the Lease, or near those lands knowing

that the location would soon be overtaken by the

ambulatory boundary. She then refused to renew the

lease on the grounds that her shore defense struc-

tures had unilaterally “fixed” the previously ambu-

latory boundary in her favor. Lummi could have

similarly resorted to self-help and removed the rip

rap that is sitting on its lands. Instead, it sought a

37

court resolution of the matter. Given the importance

Petitioner places on being able to maintain her shore

defense structures in the tidelands, and the loss of

use of, and damage to, the tidelands that Lummi

suffers from Petitioner’s continued use of the tide-

lands, and Petitioner’s refusal to enter into a use

agreement with Lummi, there was no other remedial

option open to the District Court.

The decision to grant injunctive relief was

consistent with existing law and justified by the

circumstances. A grant of certiorari would be neither

necessary nor appropriate.

CONCLUSION

Petitioner chose to purchase a vacation home

that was improvidently located too close to a shore-

line that has been eroding for many years. Both she

and her predecessor in title took advantage of the

1963 tidelands lease with Lummi to protect that

home with shore defense structures. When that lease

expired, Petitioner elected not to renew. Instead, she

tried to get the benefit of the tidelands for nothing,

claiming that shore defense structures built with

Lummis permission had somehow deprived Lummi of

its ownership of the tidelands.

While it is certainly true that Petitioner will be

better off if she can use Lummi’s property free of

charge, the courts below correctly concluded that the

law does not allow Petitioner to unilaterally deprive

38

Lummi of its vested property rights in the tidelands.

The solution, which has always been available to

Petitioner, is to negotiate an agreement with Lummi

for the use of its tidelands.

The issues presented here are unique to tide-

lands held in trust for tribes within established

Indian Reservations. The parade of horribles conjured

up by Petitioner and by amicus curiae below are

fictional. Since this case presents no national issue on

which this Court’s resolution or guidance is needed,

the Petition for Certiorari should be denied.

Dated: January 10, 2010.

Respectfully submitted,

HARRY L. JOHNSEN ITI

RAAS, JOHNSEN & STUEN, P.S

1503 E Street ¢ PO Box 5746

Bellingham, WA 98227-5746

360-647-0234 phone

Attorneys for Respondent

Lummi Natton

App. 1

TREATY WITH THE DWAMISH, SU-

QUAMISH, ETC., 1855.

Jan. 22, 1855. ! 12 Stat. 927. Ratified

Mar. 8, 1859. | Proclaimed Apr. 11, 1859.

Indian Affairs: Laws and Treaties. Vol. Il

(Treaties). Compiled and edited by Charles J.

Kappler. Washington: Government Printing

Office, 1904.

Articles of agreement and convention made and

concluded at Muucklte-66h, or Point Elliott, in the

Territory of Washington, this twenty-second day of

January, eighteen hundred and fifty-five, by Isaac I.

Stevens, governor and superintendent of Indian

affairs for the said Territory, on the part of the United

States, and the undersigned chiefs, head-men and

delegates of the Dwddamish, Suquddmish, Sk-tadhlmish,

Sam-adhmish, Smalh-kamish, Skope-dahmish, St-

kaah-mish, Snoquadlmoo, Skai-wha-mish, N” Quenitl

maa-mish, Sk-taadh-le-jum, Stoluck-whdad-mish, Sha-

ho-mish, Skddgit, Kik-i-ddllus, Swin-dd-mish, Squin-

ddh-mish, Sah-ku-mééhu, Noo-whdd-ha, Nook-wa-

chadh-mish, Mee-séée-qua-quilch, Cho-bah-aah-bish,

and other allied and subordinate tribes and bands of

Indians occupying certain lands situated tn said

Territory of Washington, on behalf of said tribes, and

duly authorized by them.

ARTICLE 1.

The said tribes and bands of Indians hereby

cede, relinquish, and convey to the United

States all their right, title, and interest in

App. 2

and to the lands and country occupied by

them, bounded and described as follows:

Commencing at a point on the eastern side of

Admiralty Inlet, known as Point Pully, about

midway between Commencement and Elliott

Bays; thence eastwardly, running along the

north line of lands heretofore ceded to the

United States by the Nisqually, Puyallup,

and other Indians, to the summit of the

Cascade range of mountains; thence north-

wardly, following the summit of said range to

the 49th parallel of north latitude; thence

west, along said parallel to the middle of the

Gulf of Georgia; thence through the middle of

said gulf and the main channel through the

Canal de Arro to the Straits of Fuca, and

crossing the same through the middle of

Admiralty Inlet to Suquamish Head; thence

southwesterly, through the peninsula, and

following the divide between Hood’s Canal

and Admiralty Inlet to the portage known as

Wilkes’ Portage; thence northeastwardly, and

following the line of lands heretofore ceded

as aforesaid to Point Southworth, on the

western side of Admiralty Inlet, and thence

around the foot of Vashon’s Island east-

wardly and southeastwardly to the place of

begining, including all the islands comprised

within said boundaries, and all the right,

title, and interest of the said tribes and

bands to any lands within the territory of the

United States.

App. 3

ARTICLE 2.

There is, however, reserved for the present

use and occupation of the said tribes and

bands the following tracts of land, viz: the

amount of two sections, or twelve hundred

and eighty acres, surrounding the small

bight at the head of Port Madison, called by

the Indians Noo-sohk-um; the amount of two

sections, or twelve hundred and eighty acres,

on the north side Hwhomish Bay and the

creek emptying into the same called Kwilt-

seh-da, the peninsula at the southeastern

end of Perry’s Island, called Shadalis-quihl,

and the island called Chah-choo-sen, situ-

ated in the Lummi River at the point of

separation of the mouths emptying respec-

tively into Bellingham Bay and the Gulf of

Georgia. All which tracts shall be set apart,

and so far as necessary surveyed and marked

out for their exclusive use; nor shall any

white man be permitted to reside upon the

same without permission of the said tribes or

bands, and of the superintendent or agent,

but, if necessary for the public convenience,

roads may be run through the said reserves,

the Indians being compensated for any

damage thereby done them.

ARTICLE 3.

There is also reserved from out the lands

hereby ceded the amount of thirty-six sec-

tions, or one township of land, on the north-

eastern shore of Port Gardner, and north of

the mouth of Snohomish River, including

App. 4

Tulalip Bay and the before-mentioned Kwilt-

seh-da Creek, for the purpose of establishing

thereon an agricultural and _ industrial

school, as hereinafter mentioned and agreed,

and with a view of ultimately drawing

thereto and settling thereon all the Indians

living west of the Cascade Mountains in said

Territory. Provided, however, That the Presi-

dent may establish the central agency and

general reservation at such other point as he

may deem for the benefit of the Indians.

ARTICLE 4.

The said tribes and bands agree to remove

to and settle upon the said first above-

mentioned reservations within one year after

the ratification of this treaty, or sooner, if the

means are furnished them. In the mean time

it shall be lawful for them to reside upon any

land not in the actual claim and occupation

of citizens of the United States, and upon

any land claimed or occupied, if with the

permission of the owner.

ARTICLE 5.

The right of taking fish at usual and ac-

customed grounds and stations is further

secured to said Indians in common with all

citizens of the Territory, and of erecting

temporary houses for the purposes of curing,

together with the privilege of hunting and

gathering roots and berries on open and

unclaimed lands. Provided, however, That

they shall not take shell-fish from any beds

staked or cultivated by citizens.

App. 5

ARTICLE 6.

In consideration of the above cession, the

United States agree to pay to the said tribes

and bands the sum of one hundred and fifty

thousand dollars, in the following manner

that is to say: For the first year after the

ratification hereof, fifteen thousand dollars:

for the next two year, twelve thousand

dollars each year; for the next three years,

ten thousand dollars each year; for the next

four years, seven thousand five hundred

dollars each years; for the next five years, six

thousand dollars each year; and for the last

five years, four thousand two hundred and

fifty dollars each year. All which said sums of

money shall be applied to the use and benefit

of the said Indians, under the direction of the

President of the United States, who may,

from time to time, determine at his dis-

cretion upon what beneficial objects to ex-

pend the same; and the superintendent of

Indian affairs, or other proper officer, shall

each year inform the President of the wishes

of said Indians in respect thereto.

ARTICLE 7.

The President may hereafter, when in his

opinion the interests of the Territory shall

require and the welfare of the said Indians

be promoted, remove them from either or all

of the special reservations hereinbefore made

to the said general reservation, or such other

suitable place within said Territory as he

may deem fit, on remunerating them for

App. 6

their improvements and the expenses of such

removal, or may consolidate them with other

friendly tribes or bands; and he may further

at his discretion cause the whole or any

portion of the lands hereby reserved, or of

such other land as may be selected in lieu

thereof, to be surveyed into lots, and assign

the same to such individuals or families as

are willing to avail themselves of the

privilege, and will locate on the same as a

permanent home on the same terms and

subject to the same regulations as are pro-

vided in the sixth article of the treaty with

the Omahas, so far as the same may be

applicable. Any substantial improvements

heretofore made by any Indian, and which he

shall be compelled to abandon in conse-

quence of this treaty, shall be valued under

the direction of the President and payment

made accordingly therefor.

ARTICLE 8.

The annuities of the aforesaid tribes and

bands shall not be taken to pay the debts of

individuals.

ARTICLE 9.

The said tribes and bands acknowledge their

dependence on the Government of the United

States, and promise to be friendly with all

citizens thereof, and they pledge themselves

to commit no depredations on the property of

such citizens. Should any one or more of

them violate this pledge, and the fact be

satisfactorily proven before the agent, the

App. 7

property taken shall be returned, or in

default thereof, of if injured or destroyed,

compensation may be made by the Govern-

ment out of their annuities. Nor will they

make war on any other tribe except in self-

defence, but will submit all matters of dif-

ference between them and the other Indians

to the Government of the United States or its

agent for decision, and abide thereby. And if

any of the said Indians commit depredations

on other Indians within the Territory the

same rule shall prevail as that prescribed in

this article in cases of depredations against

citizens. And the said tribes agree not to

shelter or conceal offenders against the laws

of the United States, but to deliver them up

to the authorities for trial

ARTICLE 10

The above tribes and bands are desirous to

exclude from their reservations the use of

ardent spirits, and to prevent their people

from drinking the same, and therefore it is

provided that any Indian belonging to said

tribe who is guilty of bringing liquor into

said reservations, or who drinks liquor, may

have his or her proportion of the annuities

withheld from him or her for such time as

the President may determine

ARTICLE 11.

The said tribes and bands agree to free all

slaves now held by them and not to purchase

or acquire others hereafter.

App. 8

ARTICLE 12.

The said tribes and bands further agree not

to trade at Vancouver's Island or elsewhere

out of the dominions of the United States,

nor shall foreign Indians be permitted to

reside in their reservations without consent

of the superintendent or agent.

ARTICLE 13.

To enable the said Indians to remove to and

settle upon their aforesaid reservations, and

to clear, fence, and break up a sufficient

quantity of land for cultivation, the United

States further agree to pay the sum of fifteen

thousand dollars to be laid out and expended

under the direction of the President and in

such manner as he shall approve

ARTICLE 14.

The United States further agree to establish

at the general agency for the district of

Puget’s Sound, within one year from the

ratification hereof, and to support for a

period of twenty years, an agricultural and

industrial school, to be free to children of the

said tribes and bands in common with those

of the other tribes of said district, and to

provide the said school with a_ suitable

instructor or instructors, and also to provide

a smithy and carpenter”s shop, and furnish

them with the necessary tools, and employ a

blacksmith, carpenter, and farmer for the

hike term of twenty years to instruct the

Indians in their respective occupations. And

App 9

the United States finally agree to employ a

physician to reside at the said central

agency, who shall furnish medicine and

advice to their sick, and shall vaccinate

them; the expenses of said school, shops,

persons employed, and medical attendance to

by the United States, and not

deducted from the annuities

be defrayed

ARTICLE 15

This treaty shall be obligatory on the con

tracting parties as soon as the same shall be

ratified by the President and Senate of the

United States

In testimony whereof, the said Isaac I. Stevens

governor and superintendent of Indian affairs, and

the undersigned chiefs, headmen, and delegates of

the aforesaid tribes and bands of Indians, have

hereunto set their hands and seals, at the place and

on the day and year herein before written Isaac |

Stevens, Governor and Superintendent. [L.S

Seattle, Chief of the Dwamish and Suquamish

tribes, his x mark. |L. S

Pat-ka-nam, Chief of the Snoqualmoo

homish and other tribes, his x mark. [L. S

Chow its hoot. Chief of the Lumm} and

tribes, his x mark. |L. S.}

Golhah, Chief of the Skagit and other

tribes, his x mark. |L. S.|

Kwallattum, or General Pierce, Sub-chiet

Skagit tribe, his x mark. [L. S.]

S"hootst-hoot, Sub-chief of Snohomish,

mark. |L. S.|

App. 10

Snah-talc, or Bonaparte, Sub-chief of Snohomish,

his x mark. [L. 8.]

Squush-um, or The Smoke, Sub-chief of the

Snoqualmoo, his x mark. |L. S.!

See-alla-pa-han, or The Priest, Sub-chief of Sk

tah-le-jum, his x mark. [L. S.]

He-uch-ka-nam, or George Bonaparte, Sub-chief

of Snohomish, his x mark. [L. S.]

Tse-nah-talc, or Joseph Bonaparte, Sub-chief of

Snohomish, his x mark. [L. S.|

Ns’ski-oos, or Jackson, Sub-chief of Snohomish,

his x mark. [L. S.]

Wats-ka-lah-tchie, or John Hobtsthoot, Sub-chief

of Snohomish, his x mark. [L. 5.]

Smeh-mai-hu, Sub-chief of Skaiwha-mish, his x

mark. [L.S

Slat-eah-ka-nam, Sub-chief of Snoqualmoo, his x

mark. |L.8.]

St”hau-ai, Sub-chief of Snoqualmoo, his x mark

[L. S.]

Lugs-ken, Sub-chief of Skai-wha-mish, his

mark. [L. S.]|

S”"heht-soolt, or Peter, Sub-chief of Snohomish,

his xX mark. |L. S.J

Do-queh-oo-satl, Snoqualmoo tribe

L. S.|

John Kanam, Snoqualmoo sub-chief, hi:

L. S.]

Klemsh-ka-nam, Snoqualmoo, his x mark

s"huahnt!, Dwa-mish sub-chief, his x mark

Kwuss-ka-nam, or George Snatelum, Sen., Skagit

tribe, his x mark. [L. S.|

Hel-mits, o1 George Snatelum, Skawit sub-chiefl,

his x mark. [L. S.]

App ] |

S”"kwai-kwi, Skagit tribe, sub-chief, his x mark

L. S.|

Seh-lek-qu, Sub-chief Lummi tribe, his x mark

L. S.]

S”h”-cheh-oos, or General Washington, Sub-chief

of Lummi tribe, his x mark. [L. S.]

Whai-lan-hu, or Davy Crockett, Sub-chief of

Lummi tribe, his x mark. |L. S.|

She-ah-delt-hu, Sub-chief of Lummi tribe, his x

mark. [L. 8. |]

Kwult-seh, Sub-chief of Lummi tribe, his x mark.

LL. S.]

Kwull-et-hu, Lummi tribe, his x mark. |L. S.]

Kleh-kent-soot, Skagit tribe, his x mark. [L. S.]

Sohn-heh-ovs, Skagit tribe, his x mark. [L. S.|

S”deh-ap-kan, or General Warren, Skagit tribs

his x mark. [L. S.}

Chul-whil-tan, Sub-chief of Suquamish tribe, hi

x mark. |L. S.]

Ske-ch-tum, Skagit tribe, his x mark. !L. S.|

Patchkanam, or Dome, Skagit tribe, his x mark

[L. S.]

Sats-Kanam, Squin-ah-nush tribe, his x mark

L. S.|

Sd-zo-mahtl, Kik-ial-lus band, his x mark. |L. S

Dahtl-de-min, Sub-chief of Sah-ku-meh-hu, his x

mark. [L.S

Sd”’zek-du-num, Me sek wi-guilse sub-chicf, his x

mark. |L.S

Now-a-chais, Sub-chief of Dwamish, his x mark

L. S.]

Mis-lo-tche, or Wah-hchl-tchoo, Sub-chief of Su

quamish, his x mark. |L. 5S

Sloo-noksh-tan, or Jim Suquam) hn tribe, hi x

mark. [L. S

App. 12

Moo-whah-lad-hu, or Jack, Suquamish tribe, his

x mark. [L. S.]

Too-leh-plan, Suquamish tribe, his x mark. [L. S.]

Ha-seh-doo-an, or Keo-kuck, Dwamish tribe, his

x mark. [L. S.]

Hoovilt-meh-tum, Sub-chief of Suquamish, his x

mark. [L. S.]

We-ai-pah, Ska:whamish tribe, his x mark. [L. 8.]

S”ah-an-hu, or Hallam, Snohomish tribe, his x

mark. [L. S.]

She-hope, or General Pierce, Skagit tribe, his x

mark. [L.8.]|

Hwn-lah-lakg, or Thomas Jefferson, Lummi

tribe, his x mark. [L. S.]

Cht-simpt, Lummi tribe, his x mark. [L. S.]

Tse-sum-ten, Lummi tribe, his x mark. [L. 8.]

Klt-hahl-ten, Lummi tribe, his x mark. [L. S.]

Kut-ta-kanam, or John, Lummi tribe, his x mark.

[L. S.]

Ch-lah-ben, Noo-qua-cha-mish band, his x mark.

[L. S.]

Noo-heh-oos, Snoqualmoo tribe, his x mark. [L. 8.]

Hweh-uk, Snoqualmoo tribe, his x mark. [L. 5.]

Peh-nus, Skai-whamish tribe, his x mark. [L. S.]

Yim-ka-dam, Sr oqualmoo tribe, his x mark. [L. S.]

Twooi-as-kut, Skaiwhamish tribe, his x mark. [L. S.]

Luch-al-kanam, Snoqualmoo tribe, his x mark.

i...

S”hoot-kanam, Snoqualmoo tribe, his x mark. [L. 8. |

Sme-a-kanam, Snoqualmoo tribe, his x mark. [L. 5.]

Sad-zis-keh, Snoqualmoo, his x mark. [L. S.]

Heh-mahl, Skaiwhamish band, his x mark. [L. S.]

Charley, Skagit tribe, his x mark. [L. S.]

Sampson, Skagit tribe, his x mark. [L. S.]

John Taylor, Snohomish tribe, his x mark. [L. S.]

App. 13

Hatch-kwentum, Skagit tribe, his x mark. [L. S.]

Yo-i-kum, Skagit tribe, his x mark. [L. S ]

T”’kwa-ma-han, Skagit tribe, his x mark. [L. S.]

Sto-dum-kan, Swinamish band, his x mark. [L. S.]

Be-lole, Swinamish band, his x mark. [L. S.]

D”zo-lole-gwam-hu, Skagit tribe, his x mark. [L. S.]

Steh-shail, William, Skaiwhamish band, his x

mark. [L. S.]

Kel-kahl-tsoot, Swinamish tribe, his x mark. [L. S.]

Pat-sen, Skagit tribe, his x mark. [L. S.]

Pat-teh-us, Noo-wha-ah sub-chief, his x mark. [L. S.]

S”hoolk-ka-nam, Lummi sub-chief, his x mark.

[(L. S.]

Ch-lok-suts, Lummi sub-chief, his x mark. [L. S.]

Executed in the presence of us —

M. T. Simmons, Indian agent.

C. H. Mason, Secretary of Washington Territory.

Benj. F. Shaw, Interpreter.

Chas. M. Hitchcock.

H. A. Goldsborough.

George Gibbs.

John H. Scranton.

Henry D. Cock.

S.S. Ford, jr.

Orrington Cushman.

Ellis Barnes.

R.S. Bailey.

S. M. Collins.

Lafayetee Balch.

E. S. Fowler.

J. H. Hall.

Rob’ ’t Davis.

App. 14

Executive Order

Lummi Reserve.

[In Tulalip Agency; occupied by Dwamish,

Etakmur, Lummi, Snohomish, Sukwamish,

and Swiwamish; treaty of January 22, 1855. |

EXECUTIVE MANSION, November 22, 1873.

It is hereby ordered that the following tract of country

in Washington Territory be withdrawn from sale and

set apart for the use and occupation of the Dwamish

and other allied tribes of Indians, viz: Commencing at

the eastern mouth of Lummi River; thence up said

river to the point where it is intersected by the line

between sections 7 and 8 of township 38 north, range

2 east of the Willamette meridian; thence due north

on said section line to the township line between

townships 38 and 39; thence west along said

township line to the low-water mark on the shore of

the Gulf of Georgia; then southerly and easterly along

the said shore, with the meanders thereof, across the

western mouth of Lummi River, and around Point

Francis; thence northeasterly to the place of be-

ginning; so much thereof as lies south of the west fork

of the Lummi River being a part of the island already

set apart by the second article of the treaty with the

Dwamish and other allied tribes of Indians, made and

concluded January 22, 1857. (Stats. at large, vol. 12,

p. 928.)

U.S. GRANT.

App. 15

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF

AMERICA, on its own

behalf and as trustee Bm, COL-OS09K

on behalf of the DECLARATION OF

Lummi Nation, DANIEL L. BOXBERGER

Plaintiff,

KEITH E. MILNER and

SHIRLEY A. MILNER,

et. al,

Defendants,

THE LUMMI NATION,

Intervenor-Plaintiff.

I, Daniel L Boxberger, certify under penalty of

perjury under the laws of the State of Washington

that the following statements are true and correct:

1. Jam over the age of 18 and competent to be a

witness herein. I make this declaration concerning

facts and events of my own personal knowledge.

2. Iam a Professor of Anthropology at Western

Washington University, and Chair of the Department

of Anthropology at W.W.U. Attached hereto and

incorporated herein as Attachment A is a true copy of

my curriculum vitae.

App. 16

3. I was hired by the Lummi Nation to investi-

gate certain matters relating to this case. I have

prepared a report which I understand has been

furnished to the Defendants, and I have been deposed

regarding that report.

4. As part of my research for this case, I

obtained the entire file of the case, Untted States v.

Stotts found in the National Archives and Records

Administration, Pacific Northwest Region, located at

Sand Point in Seattle, Washington. Attached hereto

and incorporated herein as Attachment B is a true

and correct copy of the records of that case that I

located.

Signed and dated at Bellingham, Washington, on

November 13, 2002.

/s/ Daniel L. Boxberger

Daniel L. Boxberger

App. 17

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

NORTHERN DIVISION

UNITED STATES

OF AMERICA,

Plaintiff,

No. 624-E

IN EQUITY

AMENDED BILL

OF COMPLAINT

VS.

LESLIE RAY STOTTS, R. F.

BARNARD, P. F. NORMAN,

H. W. DAWLEY, and all per-

sons claiming an interest in

the property herein described,

— — — — — _ —_ — — — —

Defendants.

TO THE JUDGES OF THE DISTRICT COURT OF

THE UNITED STATES FOR THE WESTERN

DISTRICT OF WASHINGTON:

Comes now the United States of America, by

Anthony Savage, United States Attorney for the

Western District of Washington, and David

Spaulding, Assistant United States Attorney for said

District, and presents this, its Bill in Equity, against

the defendants above named, and in that behalf

plaintiff complains and alleges as follows:

[.

The defendants, LESLIE RAY STOTTS, R. F.

BARNARD, P. F. NORMAN, and H. W. DAWLEY,

App. 18

have or claim an interest in the real property here-

inafter described.

IT.

The plaintiff in the year 1855, and for a long time

prior thereto was seized and possessed of certain real

property situated at, in and around what is known as

the Gulf of Georgia, in what is now the Northern

Division of the Western District of Washington, in

Whatcom County, which said lands were then and for

a long time prior thereto had been a part of the public

domain of the United States.

On January 22, 1855, the plaintiff, acting by and

through Isaac I. Stevens, Governor and Superinten-

dent of Indian affairs, for the Washington Territory,

entered into a treaty at Point Elliott, Puget Sound,

with the chiefs, head-men and delegates of Dwamish,

Suquamish and other allied tribes in said Washington

Territory, which said treaty was reduced to writing;

whereby in Article 2 thereof, said tracts of land

should be set apart and as for as necessary surveyed

and marked out for the exclusive use of said Indians.

Thereafter for the purpose of defining and estab-

lishing the boundaries of the Indian reservation

created by said treaty, the plaintiff, by President VU. S.

Grant, made its proclamation establishing said

Lummi Indian Reservation pursuant to the terms of

said treaty, to-wit:

App. 19

“EXECUTIVE MANSION,

November 2, 13875.

“It is hereby ordered that the following tract

of country in Washington Territory be with-

drawn from sale and set apart for the use

and occupation of the Dwamish and other

allied tribes of Indians, viz: Commencing at

the eastern mouth of Lummi River; thence

up said river to the point where it is

intersected by the line between sections 7

and 8 of township 38 north, range 8 east of

the Williamette meridian; thence due/north

on said section line to the township line

between townships 38 and 39; thence west

along said township line to the lowwater

mark on the shore of the Gulf of Georgia;

then southerly and easterly along the said

shore, with the meanders thereof, across the

western mouth of Lummi River, and around

Point Francis; thence northeasterly to the

place of beginning; so much thereof as lies

south of the west fork of the Lummi River

being a part of the island already set apart

by the second article of the treaty with the

Dwamish and other allied tribes of Indians,

made and concluded January 22, 1857.

(Stats. at Large, vol. 12, p. 928.)

U.S. Grant.”

[TI

That pursuant to the terms of said treaty and the

Presidential Proclamation, and at all times thereafter

App. 20

to the date of this complaint, the plaintiff has devoted

the said lands and real property contained within the

exterior boundaries of said Lummi Reservation to the

exclusive use and occupation of the Lummi and other

allied tribes entitled to occupy the same under the

said treaty, and the said real property described

within the said exterior boundaries of said reserva-

tion is and at all times mentioned in this complaint

was an Indian Reservation and a part of the public

domain of the United States, the title to which has

ever been held in fee simple by the plaintiff for the

use and benefit of said Indians, except as allotments

have been made from time to time to individual

Indians.

IV.

That on the 26th day of January, 1925, the State

of Washington sold and conveyed the tide lands

located in front of Lot 1, Section 5, Township 38 N.,

Range 1 E., to R. F BARNARD: on January 26, 1925,

the State of Washington sold and conveyed the tide

lands in front of Lot 2, Section 5, Township 38 N.,

Range 1 E., to B. F NORMAN; that on January 26,

1925, the State of Washington sold and conveyed the

tide lands in front of Lots 3, 4, 5 and 6, Section 5,

Township 38 N., Range 1 E., to LESLIE RAY

STOTTS; that on January 26, 1925, the State of

Washington sold and conveyed to LESLIE RAY

STOTTS tide land in front of that part of Lot 1,

Section 5, Township 38 N., Range 1 E., located south

of the plat of Neptune Beach; that on January 27,

App. 21

1925, the State of Washington sold and conveyed to

H. W. DAWLEY, lands in front of the south 150 feet of

Lot 2 of said Section 5, Township 38 N., Range 1 E.

V.

That all and singular the above described parcels

of land lie within the exterior boundaries of the

Lummi Indian Reservation as the same was estab-

lished, defined and bounded by the said treaty and

presidential proclamation, within the said division

and district aforesaid, and are a part of the public

domain of the United States.

VI.

That the said several deeds and contract,

purporting and attempting to convey title to the

defendants hereinafter mentioned to the lands

mentioned and described therein cloud, encumber

and injure the plaintiff’s title and serve to continually

and constantly annoy, harass and disturb the plaintiff

in the quiet and peaceful enjoyment of said lands

which it had set aside for the use and benefit of said

Indians. That from time to time trespasses have been

committed on said lands by the white defendants

named herein, and others to the plaintiff unknown,

and the outstanding purported, pretended and

alleged title from the State of Washington operates as

and furnishes an alleged and pretended justification

to said defendants and others to continue to trespass

on said lands and on said Indian Reservation.

App. 22

VII.

That all, and singular, the purported, attempted

and pretended conveyances of the State of Washing

ton to said mentioned defendants, attempting and

purporting to convey the said tide lands herein

described are and were null and void and the State of

Washington was without legal authority to enter into

or make or execute the said conveyances or to sell or

dispose of the said lands, and the said mentioned

defendants, LESLIE RAY STOTTS, R. F. BARNARD,

P. F. NORMAN, H. W. DAWLEY, acquired no legal or

lawful right, title, interest or estate in or to said

lands, and their said pretended and alleged claims of

ownership and title constitute a cloud on plaintiff’s

title.

VII.

That all and singular the Jands described herein

are vacant and unoccupied tide lands in the Gulf of

Georgia, in the possession of the plaintiff and all

within the boundaries of said Lummi Reservation.

That the uplands adjacent to the above described

waterfront property has been heretofore alienated by

the Indians and is at present owned in fee simple by

citizens.

[X.

The plaintiff has no adequate remedy at law

whereby its title to said Reservation may be quieted

App. 23

and relieved of the pretended claims of the defen-

dants and the several! deeds and contract described

herein canceled, set aside and decreed to be null and

void; that the lands described in this complaint, title

to which the plaintiff seeks to quiet and to remove

encumbrances therefrom lie and are situated in

Whatcom County, within the Northern Division of the

Western District of the state of Washington and

within the jurisdiction of this court. [This action is

brought by the direction of the attorney general of the

United States and by virtue of the authority received

by the US atty for the western district of Washington

from said attorney general. /s/ [Illegible] |illegible}]

PRAYER

IN CONSIDERATION WHEREOF and for inas-

much as the plaintiff is without full and adequate

remedy in the premises, save in a court of equity, and

to the end that the defendants, and each of them,

may full, true and direct answer make to all and

singular the matters and things herein set out, and

may fully disclose and state their claims to the said

land, and whatever right, title or interest they may

have in and to the said lands described in this

complaint, or to any part thereof, as fully as if they

had been particularly interrogated thereunto, but not

under oath (an answer under oath being hereby

expressly waived), plaintiff now prays the Court that

all and singular the several conveyances, deeds and

other instruments purporting on their face to convey

an interest in and to the lands described herein, to

App. 24

the several defendants mentioned in this cause, be

decreed to be null and void and of no legal effect, and

that the said deeds, instruments and other convey-

ances purporting to convey or establish an interest in

and to the above described lands be canceled, set

aside and decreed to be null and void, and the several!

alleged owners of said lands named as defendants in

this action be decreed to have no estate, right, title or

interest in said lands.

Plaintiff further prays that its title be quieted as

against the claims of each and every of the defen-

dants named herein and all and singular as against

the claims and demands of any person or persons

whomsoever having or claiming to have an interest in

and to said lands, and the plaintiff be decreed to be

the owner of said lands as against all the world,

subject to such right, title or interest as the plaintiff

has created or has conveyed. And that plaintiff have

such other and further relief as in equity may seem

meet.

May it please Your Honor to grant unto the

plaintiff a writ of subpoena of the United States of

America, issued by and under the seal of this

Honorable Court, directed to the defendants, and

each of them, thereby commanding them, and each of

them, at a certain time and under a certain penalty

therein to be limited, to appear before this Honorable

Court and then and there full, true and direct

answers make to all and singular the premises. and

stand to perform and abide by said order, direction

and decree as may be made against them, or any of

App. 25

them, in the premises as shall be meet and agreeable

In equity

Anthony Savage

United States Attorney

David Spaulding

Assistant United

States Attorney

UNITED STATES OF AMERICA

WESTERN DISTRICT OF WASHINGTON

NORTHERN DIVISION

DAVID SPAULDING, being first duly sworn, on

oath deposes and says: That he is an Assistant United

States Attorney for the Western District of Washing

ton, Northern Division, and as such makes this

verification for and on behalf of the United States of

America:

That he has read the foregoing |Amended/|/Bill of

Complaint, knows the contents thereof, and believes

the same to be true

David Spaulding

SUBSCRIBED and sworn to before me this 27th day

of June, 1928

[Tllegible]

Deputy Clerk, United States

District Court, Western

District of Washington

App. 26

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JNITED STATES OF

AMERICA, on 1ts own NO. CO1-0809R

behalf and as trustee

on behalf of the DECLARATION OF

Lummi Nation, RICHARD JEFFERSON

Flaintiff,

KEITH E. MILNER and

SHIRLEY A. MILNER,

et. al,

Defendants,

THE LUMMI NATION,

Intervenor-Plaintiff.

I, Richard Jefferson, certify under penalty of

perjury under the laws of the United States that the

following statements are true and correct to the best

of my knowledge:

1. I am an enrolled member of the Lummi

Nation, and Director of the Planning Department for

the Lummi Nation, Intervenor-Plaintiff in the above

titled case. I am also a former member of the Lummi

Indian Business Council, the governing body of the

Lummi Nation. I am over the age of 18 and compe-

tent to be a witness herein. | make this declaration

concerning facts and events of my own personal

knowledge.

App. 27

2. When Sandy Point was first developed, the

Lummi Tribe entered into a lease with the Sandy

Point Improvement Company, for the benefit of the

waterfront owners at Sandy Point. A true and correct

copy of that lease is attached as Exhibit 1. The lease

gave the Sandy Point waterfront owners the right to

place bulkheads, seawalls, rip-rap and other shore

defense structures on the tidelands owned by the

United States in trust for the Lummi Tribe. See lease

paragraph 16.

3. The lease expired in 1988. The lessee held an

option to renew the lease for an additional 25 years.

See lease paragraph 14. After the Lummi Nation was

informed that the Sandy Point Improvement Com-

pany was not intending to exercise its option to renew

the lease and was also refusing to remove the shore

defense structures from the tidelands, I became

personally involved as a member of the Lummi

Indian Business Council in the Tribe’s extended

efforts to negotiate a new lease with the Sandy Point

waterfront property owners. I participated later as

the Director of the Planning Department as well. The

Tribe hoped to avoid the need to sue its neighbors to

remove the trespassing structures.

4. The negotiations lasted longer than in the

usual commercial or residential lease, for a number

of reasons: (1) the sheer number of parties and

attorneys involved in the negotiations, (2) tense

relations between the Tribe and some of the Sandy

Point owners, (3) the complexity of the legal issues

surrounding ownership of the tidelands, and (4) the

App. 28

harm that might accrue to the Sandy Point

waterfront owners if the bulkheads were summarily

removed. In addition, the very complicated question

of a lease for the entrance to the artificial canal

system at Sandy Point was being addressed by the

negotiators at the same time. The Lummis tried to be

patient, in the hopes that the Sandy Point owners

would realize that it was in their best interests to

negotiate rather than defend a lawsuit.

5. At all times during the negotiations, we made

it clear that the Tribe was not simply going to go

away, that the waterfront owners had to either agree

to a lease, remove the bulkheads, or face a trespass

lawsuit.

6. Despite our best efforts, we were not able to

reach a negotiated solution with Defendants. It be-

came clear to all concerned that until certain legal

issues were resolved, the parties were not likely to

reach an agreement on new lease terms. At that point

the United States filed this lawsuit.

DATED this 14th day of November, 2002, at

Bellingham, Washington.

/s/ Richard Jefferson

Richard Jefferson

App. 29

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

LEASE

Fee: $6.00 Allotment No. Lummi Tribal Tidelands

Lease No, 4577

Contract No.

Western Washington Indian Agency

THIS CONTRACT, made and entered into this

14th day of May, A.D. 1965, by and between the

Indian or Indians named below (the Secretary of the

Interior acting for and on behalf of the Indians)

hereinafter called the “lessor,” and Sandy_ Point

Gemmiunity—Ge-—tne- Improvement Co., FLK, a

Washington corporation, of 518 — lst Avenue North,

Room 26, Seattle, Washington 98109, hereinafter

called the “lessee” in accordance with the provisions

of existing law and the regulations (25 CFR 131)

which by reference are made a part hereof.

WITNESSETH, That for and in consideration of

the rents, covenants, and agreements hereinafter

provided, the lessor hereby lets and leases unto the

lessee the land and premises described as follows, to

wit: See attached “Exhibit A”

containing 3-400 acres, more or less, for the term

to expire on March 31, 1988, subject to Provision 1, to

App. 30

recreational, boating, fishing and related _moorage,

and aii aspects of these uses.

The lessee, in consideration of the foregoing,

covenants and agrees, as rental for the land and

premises, to pay:

TO - DATE DUE AMOUNT

Bureau of Indian Affairs, 5-1-65 $ 2,000.00

Western Washington 0-1-66 2,000.00

Agency forthe LUMMI ____5-1-67 2,000.00

TRIBE OF INDIANS __ 5 -1-68 2,000.00

5-1-69 2,000.00

See Provision 7

In the event of the death of any of the owners to

whom, under the terms of this lease, rentals are to be

paid direct, all reritals remaining due and payable

shall be paid to the official of the Bureau of Indian

Affairs having jurisdiction over the leased premises.

This provision is applicable only while the leased

premises are in trust or restricted status.

While the leased premises are in trust or re-

stricted status, the Secretary may in his discretion,

and upon notice to the lessee, suspend the direct

rental payment provisions of this lease in which event

the rentals shall be paid to the official of the Bureau

of Indian Affairs having jurisdiction over the leased

premises.

App. 31

This lease is subject to the following provisions:

1. “SECRETARY” as used herein means the

Secretary of the Interior or his authorized repre-

sentative.

2. IMPROVEMENTS. — Unless otherwise pro-

vided herein it is understood and agreed that any

buildings or other improvements placed upon the said

land by the lessee become the property of the lessor

upon termination or expiration of this lease.

3. UNLAWFUL CONDUCT. - The lessee agrees

that he will not use or cause to be used any part of

said premises for any unlawful conduct or purpose.

4. SUBLEASES AND ASSIGNMENTS. — Unless

otherwise provided herein, a sublease, assignment or

amendment of this lease may be made only with the

approval of the Secretary and the written consent of

all parties to this lease, including the surety or

sureties.

5. INTEREST. — It is understood and agreed

between the parties hereto that, if any installment of

rental is not paid within 30 days after becoming due,

interest at the rate of 6 percent per annum will

become due and payable from the date such rental

became due and will run until said rental is paid.

6. RELINQUISHMENT OF SUPERVISION BY

THE SECRETARY. — Nothing contained in this lease

shall operate to delay or prevent a termination of

Federal trust responsibilities with respect to the land

by the issuance of a fee patent or otherwise during

App. 32

the term of the lease; however, such termination shall

not serve to abrogate the lease. The owners of the

land and the lessee and his surety or sureties shall be

notified by the Secretary of any such change in the

status of the land.

7. RENTAL ADJUSTMENT. — The rental provi-

sions in all leases which are granted for a term of

more than five years and which are not based pri-

marily on percentages of income produced by the land

shall be subject to review and adjustment by the

Secretary at not less than five-year intervals in

accordance with the regulations in 25 CFR 131. Such

review shall give consideration to the economic condi-

tions at the time, exclusive of improvement or devel-

opment required by this contract or the contribution

value of such improvements.

8. INTEREST OF MEMBER OF CONGRESS. —

No Member of, or Delegate to, Congress or Resident

Commissioner shall be admitted to any share or part

of this contract or to any benefit that may arise

herefrom, but this provision shall not be construed to

extend to this contract if made with a corporation or

company for its general benefit.

9. VIOLATIONS OF LEASE. - It is understood

and agreed that violations of this lease shall be acted

upon in accordance with the regulations in 25 CFR

131.

10. ASSENT NOT WAIVER OF FUTURE

BREACH OF COVENANTS. —- No assent, express or

implied, to any breach of any of the lessee’s covenants,

App. 33

shall be deemed to be a waiver of any succeeding

breach of any covenants.

11. UPON WHOM BINDING. -— It is understood

and agreed that the covenants and agreements here-

inbefore mentioned shall extend to and be binding

upon the heirs, assigns, successors, executors, and

administrators of the parties of this lease. While the

leased premises are in trust or restricted status, all

of the lessee’s obligations under this lease, and the

obligations of its sureties, are to the United States as

well as to the owner of the land.

12. APPROVAL. — It is further understood and

agreed between the parties hereto that this lease

shall be valid and binding only after approval by the

Secretary.

13. ADDITIONS. Prior to execution of this

lease, provision(s) number(s) 14, 15, 16, 17 and 18 has

(have) been added hereto and reference +s (are) made

a part hereof.

14. This lease may be renewed at the option of

the Le see for a further term of not to exceed twenty-

five (25) years, commencing at the expiration of the

original term, upon the same conditions and terms as

in effect at the expiration of the original term, pro-

vided that notice of the exercise of such option shall

be given by the Lessee to the Lessor and the Super-

intendent in writing at least twelve (12) months prior

to said expiration of original term.

App. 34

15. The purpose of this lease is for boating,

fishing and recreational, and moorage, repair and all

uses related to these purposes. The Lummi Indian

Tribe reserves access rights over said tidelands.

16. It is understood that the Lessee has the

right to alter or fill portions of the tidelands not to

exceed 100 feet seawardly from the present bank.

17. It is understood and agreed that this lease

is subject to Lease No. 4154, in favor of the Bel-

lingham Marine, Inc. covering a 200-foot passage-

way.

18. No payments made under this lease will be

refunded because of title defects and the Lessor and the

Secretary do not warrant title to the leased premises.

Sandy Point Community Co., Inc. Lease

Lummi tribal tidelands immediately adjacent to

and fronting upon the following described lands in

Whatcom County, State of Washington:

Government Lots 1, 2, 3, 4, sec. 8

Government Lots 5 and 6, sec. 9

Government Lots 1, sec. 17.

Government I.ots 1, sec. 16

All in T. 38 N., R. LE., Willamette Meridian,

Washington.

App. 35

The tidelands described in this lease shal! not

exceed beyond 660 feet seawardly from the present

bank.

IN WITNESS WHEREOF, the parties hereto

have hereunto set their hands on 14th day of May,

1965

Witnesses (two to SANDY POINT GOMMUNTTY

each signature): CO—tme: IMPROVEMENT CO.

By /s/ R.BK. Rogers

President

P.O.

Le SSCC

ATTEST: Robert R. Walker

Assistant Secretary

Sandy Point

Improvement Co.

P.O. 987399

Lessee

ATTEST: LUMMI INDIAN TRIBE

P.O. Vernon Lane By /s/ Forrest L. Kinley

Secretary, Lummi Lessor

Tribal Council

Acting Sec.

Lummi ‘mba! Council

P.O

Li 'SSOr

App. 36

STATE OF WASHINGTON? ...

COUNTY OF SNOHOMISH ?”

On this day personally appeared before me

Forrest Kinley, Chairman of the Lummi Tribal Coun-

cil, to me known to be the individual described in and

who executed the within and foregoing instrument,

and acknowledged that he signed the same as his free

and voluntary act and deed, for the uses and purposes

therein mentioned.

GIVEN under my hand and official seal this 14th

day of May, 1965.

/s/ H.E. Isenhart

NOTARY PUBLIC in and

for the State of Washington,

residing at Everett

STATE OF WASHINGTON

COUNTY OF [ILLEGIBLE] ”

On this day personally appeared before me R. E

Rogers and who executed the within and foregoing

instrument, and acknowledged that they signed the

same as their free and voluntary act and deed, for the

uses and purposes therein mentioned.

rAd

App. 37

GIVEN under my hand and official seal this 14t}

day of May, 1965

H.E. Isenhart

NOTARY PUBLIC in and

for the State of Washington,

residing at Everett

Approved MAY 17 1965 George Ivi. Felshaw

Superintendent

Approt ing Offi 10/

App. 38

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF a

AMERICA, on its own INO CO1-0809R

behalf and as trustee on 'SRCOND

behalf of the Lummi Nation, |pRCLARATION

Spear .

Plaintiff, OF DANIEL L.

O 3E

KEITH E MILNER and BOABERGER .

SHIRLEY A MILNER. et. al, |(Noted for hearing

: November 22, 2002)

Defendants,

THE LUMMI NATION,

Intervenor-Plaintiff

I, Daniel L Boxberger, certify under penalty of

perjury under the laws of the State of Washington

that the following statements are true and correct

1. I am over the age of 18 and competent to be a

witness herein. I make this declaration concerning

facts and events of my own personal knowledge

2 Iam a Professor of Anthropology at Western

Washington University, and Chair of the Department

of Anthropology at W.W.U Attached hereto and

incorporated herein as Attachment A is a true copy of

my curriculum vitae

3 I was hired by the Lummi Nation to inves-

tigate certain matters relating to this case. | have

prepared a report which I understand has been

App oy

furnished to the Defendants, and I have been deposed

regarding that report A copy of that report is ap

pended and incorporated herein as Attachment B

4 As stated in my report, the Lummi Indians in

the nineteenth century understood the demarcation

between uplands and tidelands to be the line of vege-

tation. When the federal government had the Lummi

Reservation surveyed in the 1870’s and 1880's for the

purpose of allotting the arable lands of the Reserva

tion, the line of vegetation would have been under

stood by the Indians to be the boundary between the

individually owned uplands and the tidelands that

were to be held for the common use of all tribal

members

Signed and dated at Bellingham, Washington, on

November 15, 2002

Daniel L. Boxberger

Daniel L. Boxberger

App. 40

The Importance of Tidelands to the Lummi Indians

and

The Understanding of the Lummi Indians

of the Surveys of Land Assignments and Tidelands

on the Lummi Indian Reservation

Prepared for the Office of the Reservation Attorney

Lummi? [Indian Reservation

fas AVOOGL VaAvVAVIS

by

.

Daniel L. Boxberger, Ph.D.

Bellingham, Washington

February 2002

* = >

App. 41

Il. Question 1

1. What was the importance of tidelands

to the Lummi Indians at and around

the time of the Treaty of Point Elliott

and at the time the assignment of

lands were made on the Lummi Indian

Reservation?

From time immemorial the Lummi have been a

people of the seacoast. The dependence upon mari-

time resources has been indicative of the Lummi way

of life from prehistoric times to the present. This

dependence was recognized by the federal govern-

ment of the United States. In Article 5 of the Treaty

of Point Elliott the U.S. Government and the Lummi

agreed that:

The right of taking fish at all usual and

accustomed grounds and stations is further

secured to said Indians in common with all

citizens of the Territory, and of erecting

temporary houses for the purpose of curing,

together with the privilege of hunting and

gathering roots and berries on open and

unclaimed lands. Provided, however, That

they shall not take shell-fish from any beds

staked and cultivated by citizens.

The dependence of the Lummi on the resources of

the tidelands has been recorded in the ethnographic

database, most notably by Stern (1934) and Suttles

(1951). They both emphasize the importance of the

shoreline to the Lummi. The shore is the area

between the sea and the land. Symbolically the shore

j

A

App. 42

is the mid-point in the life of a person. The preferred

place for a child to be born was on the beach. When a

person dies they are laid to rest in the forest. The

shore is where people pull up their canoes and where

they build their homes. Homes were built above the

high water mark on sand or gravel where support

posts could be dug into the ground, where there was

drainage and where they were protected from the cold

northeast wind. Summer homes were built on rocky

shores facing the sun, preferably where the warm

wind blows so that it will help dry the fish taken at

reef net locations. Several homes composed a village.

Canoes were usually left just above the high water

mark so that they could easily be launched when

needed.

In front of the villages were sandy or gravel

beaches and often below the beaches were mud flats

uncovered at low tide. In the gravel there were butter

clams, steamer clams, and horse clams. On the mud

flats cockles lie just below the surface and beds of

mussels are found. Further out on the tide flats are

beds of eelgrass where flounders can be speared when

the tide is low. Herring lay their eggs on the eelgrass

and the Lummi would gather the herring spawn for

food. Crabs could be taken at low tide by wading. At

the upper end of the beach the Lummi would dig pits

to steam shellfish. First a fire would be built, then

seaweed laid over the hot rocks, then shellfish, then

more seaweed, and then covered over and allowed to

cook. This was an important method for cooking large

amounts of shellfish for preservation as well as the

App. 43

center of important social events. Ducks swim over

the beds cf eelgrass and into the deeper water. Eel-

grass is used for tying on the reef nets. In some places

a path could be cut through the eelgrass to guide the

salmon into the nets. Beyond the low tide was where

the reef nets were set. Reef nets took sockeye sal-

mon, the mainstay of the Lummi economy (Boxberger

2000:13).

On rocky shores other types of resources were

found in the intertidal zone. Sea urchins, abalone and

oysters were gathered from these locations. Beyond

low tide rock fish and ling cod could be lured to the

surface to be speared, or taken with a hook and line.

Above the beach, beyond the reach of the tide,

camas, wild onions and other plant foods grow. By the

early 1800s the Lummi were planting potatoes in the

beach prairies, an indication that agriculture was a

well understood concept by the time the treaties were

negotiated. It is also an indication that the Lummi

valued agriculture as an addition to their standard of

living by treaty time. In some places there are salt

marshes where cattail and tule are harvested to

make into mats for bedding and floor coverings.

Beyond the beach prairies and salt marshes lie the

forest where red cedar provided planks for their

homes, logs for canoes, and cedar bark for clothing

and baskets.

Exclusive or primary “ownership” of certain sites

existed, but it was not the formal or typical way in

which resources were accessed or exploited. Some

& b

mad

App. 44

locations, such as reef net sites, were said to be owned

by individuals. However, the owner was expected

to hold the site in trust for a larger kin group. Thus,

the Lummi understood the concept of ownership of

particular properties, but mostly the ownership of

resource locations was impractical and uncommon.

There is a singular instance of a clam bed on Lopez

Island being in the control of an extended kin group,

but in almost all cases the tidelanes were used in

common by the Lummi tribe.

Based on these facts, it is likely that the concepts

of family ownership of upland tracts and common

ownership of the beaches and tidelands could have

been conveyed to and understood by the Lummi dur-

ing the treaty-making process. Just as the Lummis

were adamant about maintaining their historic access

to off reservation fisheries in the treaty negotiations,

it is likely that they would also have been adamant

about preserving the common use of the reservation

tidelands. This is especially likely given the role of

the beaches in the daily lives of every 19th century

Lummi, and the fact that many of the treaty assign-

ments would inevitably be located away from the

beach. It is difficult to conceive of treaty time Lummis

agreeing to forego access to and use of the beaches, or

to make their access and use dependent upon permis-

sion from other persons, even other members of the

tribe.

The culture of the Lummi can be seen as centered

on the beach where every part of their livelihood was

found. The beach was part of a transition from the

App. 45

sea to the forest. Like the life of an individual is a

transition from infancy to old age, Nature is a transi-

tion from the sea to the land. Nature is a source of

supernatural powers and food is a gift of the super-

naturals. Nature is exploited by the intensive use of

specific resources at specific times of the year. From

the winter villages to shellfish gathering locations, to

reef net sites, to root crops, the Lummi seasonally de-

pended upon localized resources that were consumed

fresh and preserved for use year-round. The beaches

were the thoroughfare of access. Although, salmon

played a major role in the subsistence economy of

the Lummi, the importance of other resources cannot

be dismissed. Shellfish especially were an important

resource for the Lummi, as were other littoral re-

sources. While modified by economic and political exi-

gencies this dependence continues into the present.

Prior to 1860 the Lummi lived in about nineteen

villages between Point Roberts and Lopez Island.

Three of these villages were located on what was to

become the Lummi Indian Reservation. By the Treaty

of Point Elliott the Lummi agreed to move onto the

reservation and establish their permanent homes

there.

Indian reservations were intended to be a base

from which the northwest Indians would continue to

rely on the resources of their traditional territories.

Recognizing that the Indians were dependent upon

resources off the reservation and that they would not

give up that dependence in the treaties, the federal

government agreed that the Indians would be able to

App. 46

leave the reservation for the purposes of fishing,

hunting and gathering. This was made explicit at

the treaty negotiations. The reservation was to be

the place where the Lummi built their homes, but

the Lummi also expected to be able to travel off-

reservation to access other resource sites. Article 5 of

the Treaty of Point Elliott (quoted above) stipulates

the right to erect shelters off-reservation to preserve

resources. This would have typically been on the

beach.

The Lummi Reservation was ideally located for

these purposes. It provided access to the fishing

locations of the San Juan archipelago and northward

to Point Roberts. It is located at the mouth of the

Nooksack River, an important salmon stream. And it

was composed mostly of low bank shoreline which

provided building locations and access to the sea

shore.

The sea shore of the Lummi Indian Reservation

is essential for four main reasons: it provides access

to the main means of water transportation; it pro-

vides means of access to salmon fisheries; it provides

access to intertidal resources; and it is a place of

gathering for social activities.

Intertidal resources are gathered in a number of

locations on the reservation. Shellfish, in particular,

are harvested at Brant Island in Lummi Bay, near

Portage, Gooseberry Point and Sandy Point. Sandy

Point was a place where Lummis gathered butter

clams (Saxidomus giganteus). Aloysius Charles

App. 47

(1898-1983) a respected tribal historian, spoke of the

importance of Sandy Point during spring tides. He

told of how sometimes in the spring when the stee-

whit (west wind) blew, it would create strong wave

action on Sandy Point. This wave action would wash

the butter clams loose and the Lummi could gather

them in abundance, preserving large numbers.

In summary, the reservation tidelands were of

vital importance to the welfare of the Lummi tribe as

a whole at treaty time. The tidelands provided access

to resources both within the tidelands and, via canoe,

in other locations where the Lummi reserved fishing

and gathering rights. The tidelands were socially,

economically and culturally important to the manner

in which the Lummi viewed themselves and the world

around them. They would not have relinquished the

common use of the reservation tidelands to indi-

viduals or families when they entered into the treaty.

i

App. 48

Judge Leighton

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF

AMERICA, on its own

behalf and as trustee on

behalf of the Lummi Nation,

Plaintiff,

NO. C01-0809R

DECLARATION

OF JAMES

JOHANNESSEN

Ve

KEITH E MILNER AND

SHIRLEY A MILNER,

Defendants

~ — me meee ee

UNITED STATES OF

AMERICA, on its own

behalf and as trustee on

behalf of the Lummi Nation, )

Plaintiff, |

Vv.

MARY D. SHARP,

Defendant.

UNITED STATES OF

AMERICA, on its own

behalf and as trustee on

behalf of the Lummi Nation,

Plaintiff,

v.

BRENT C. NICHOLSON

ANI) MARY K. NICHOLSON,

Defendants.

App. 49

UNITED STATES OF

AMERICA, on its own

behalf and as trustee on

behalf of the Lummi Nation,

Plaintiff,

Vv.

HARRY F. CASE,

Defendant.

UNITED STATES OF

AMERICA, on its own

behalf and as trustee on

behalf of the Lummi Nation,

Plaintiff,

Vv.

LAN C. BENNETT

AND MARCIA A. BOYD,

Defendants.

UNITED STATES OF

AMERICA, on its own

behalf and as trustee on

behalf of the Lummi Nation

Plaintiff,

Vv.

DONALD C. WALKER

AND GLORIA WALKER,

Defendants.

THE LUMMI NATION,

Intervenor-Plaintiff

App. 50

DECLARATION OF JAMES JOHANNESSEN

I, JAMES JOHANNESSEN, do declare and say:

1. I am a coastal geomorphologist specializing

in applied coastal research and science-based coastal

inanagement. 1 have been employed as a coastal

geomorphologist since 1985. Atrue and correct copy of

my curriculum vitate is attached hereto and marked

as Exhibit A, which further summarizes my expe-

rience.

2. I have been asked by the Assistant United

States Attorney who represents the federal govern-

ment in this case to prepare a declaration which

discusses the environmental impacts of the riprap

and bulkhead which fronts the property of Brent and

Mary Nicholson.

3. The riprap fronting the bulkhead at the

Brent and Mary Nicholson property, located on the

southern portion of the west shore of Sandy Point on

the Lummi Indian reservation, is negatively impact-

ing the Lummi owned tidelands in terms of beach

stability and nearshore habitats. The large volume of

riprap that is present at the property extends down to

the mid to lower foreshore (steeper upper and mid

portions of the intertidal beach), with large boulders

on the beach scattered between +2.5 and +6.0 ft Mean

Lower Low Water (MLLW).

4. The presence of bulkheads has been docu-

mented to accelerate beach erosion as beach sedi-

ment directly waterward of this type of structure is

App. 51

entrained by increased reflectivity and increased

hydraulic turbulence (Macdonald at al., 1994, Miles

et al., 2001). A bulkhead with reflective character acts

to reflect incoming wave energy back out across the

beach (Plant and Griggs 1992). Much of the energy of

incoming waves is transferred back waterward (as

rapid backwash), which transports the mobilized

beach sediment offshore into bars or alongshore at an

accelerated transport rate (Miles et al 1997). The

effect of bulkheads should be contrasted against a

dissipative sand and gravel backshore/“storm berm.”

5. Beaches waterward of an intertidal bulkhead/

revetment also tend to experience a higher degree of

bulkhead-induced impacts than do beaches water-

ward of a bulkhead that is located landward of Mean

Higher High Water (MHHW) (Canning and Shipman

1995, Shipman 1998, Spalding et al 2001, Nordstrom

1992). The toe of the dense riprap revetment at the

Nicholson property, as surveyed in May 2004 by Paci-

fic Survey and Engineering, extends waterward to

approximately elevations +5.5 to +6.25 ft MLLW. This

is generally 2.0 to 2.5 ft vertically below local MHHW

(+8.32 ft MLLW). Virtually the entire rock revetment

is located waterward of Mean High Water (MHW) and

MHHW. The dense riprap revetment is stacked at a

very steep angle at the Nicholson property, and the

boulders are very angular, such that the riprap has a

moderately reflective waterward face. Wave reflection

at the property has very likely removed beach

sediment from the foreshore, leading to a lower beach

profile that would be present without the riprap at

App. 52

the Nicholson property. Bulkhead induced turbulence

appears to have caused the foreshore to be artificially

steep fronting the Nicholson property, creating an

artificially narrow foreshore.

6. The presence of a bulkhead or steep riprap

revetment on the upper intertidal teads to cause a

selective winnowing of beach sediment, with fines

(sand) selectively removed from the foreshore water-

ward of the bulkhead (Thom et al 1994). This is due

to increased wave energy immediately waterward of

the bulkhead as well as increased littoral drift (long-

shore transport) rates (Miles 2001). Fine sediment is

removed from the area waterward of the bulkhead

and deposited further waterward or transported away

from the site.

ry

7. When fines are removed from the upper in-

tertidal beach due to bulkhead-induced impacts, the

beach is converted to a gravel beach, as is likely the

case at southern Sandy Point (MacDonald et al 1994).

A gravel beach does not provide the same quality of

habitat as a finer grain beach (Thom et al 1994). This

leads to a direct loss of nearshore habitats due to

reduction in area of habitat patches. Habitats of

particular value to the local nearshore system that

may have been present at the subject property in-

clude forage fish (such as surf smelt) spawning habi-

tat. These habitat areas are only found in the upper

intertidal portion of fine gravel and sand beaches,

with a high percentage of 1-7 mm sediment (Pen-

tilla 1978). Beach sediment coarsening also can af-

fect hardshell clam habitat, by decreasing or locally

App. 53

eliminating habitat. This may very well have

occurred at the Nicholson property, but no accurate

pre-development data is known to exist.

8. In general terms, when erosion occurs at a

bulkheaded site for whatever reason, the intertidal

area is decreased (Shipman 1998, Douglass and

Pickel 1999) and intertidal habitat area is lost. This

is the case at the Nicholson property where the beach

above the +3 ft MLLW contour is partially covered by

large boulders and the beach above the +5.5 to

+6.25 ft MLWW contour is completely covered with

large boulders. For comparison, the unbulkheaded

shore that is nearest to the Nicholson site, located

approximately 27 lots to the north, the beach and

backshore area extended (as surveyed in January 2002

by Pacific Surveying and Engineering) approximately

73 ft landward of the elevation corresponding to the

bulkhead toe at Nicholson property (+6.0 ft MLLW).

9. Studies in other locations have quantitatively

documented a decrease in meiofaunal abundance

in upper beach sediment waterward of a bulkhead

(Spalding and Jackson 2001). This may also be

the case at the Lummi tidelands waterward of the

Nicholson property.

10. In conclusion, the large riprap revetment at

the Nicholson property discussed herein, impart neg-

ative physical and ecological impacts to the nearshore

system habitats it contains.

ll. A-list of references which I have relied on in

support of the foregoing is as follows:

App. 54

Canning, Douglas J. and Hugh Shipman,

1994, Coastal Erosion Management Studies

in Puget Sound, Washington: Executive

Summary, Coastal Erosion Management

Studies Volume I, Shorelands and Water

Resources Program, Washington Department

of Ecology, Olympia.

Douglass, Scott, and Pickel, Bradley, 1999,

The Tide Doesn’t Go Out Anymore — The

Effects Of Bulkheads On Urban Bay

Shorelines, Shore and Beach, v. 67, n. 2&3,

p. 19-25.

Macdonald, Keith, Simpson, David, Paulsen,

Bradley, Cox, Jack, and Gendron, Jane, 1994,

Shoreline armoring effects on physical coas!

al processes in Puget Sound, Washington:

Coastal Erosion Management Studies, Vol-

ume 5, Shorelands Program, Washington

Dept. of Ecology, Olympia, DOE Report

94-78.

Miles, J.R., Russel, P.E., and Huntley, D.A.,

1997, Sediment transport and wave reflec-

tion near a seawall. Proceedings of the 25th

Coastal Engineering Conference. (American

Society of Civil Engineers) p. 2612-2624.

Miles, Jonathan R., Paul E. Russel, and

David A. Huntley, 2001, Field Measurements

of Sediment Dynamics in Front of a Seawall,

Journal of Coastal Research, v.17, n.1,

p. 195-206.

Nordstrom, K.F., 1992, Estuarine Beaches,

New York: Elsevier, 225p.

App. 55

Pentilla, Dan, 1978, Studies of Surf Smelt

(Hypomesus pretiosus) in Puget Sound. WA

Dept. of Fisheries, Technical Report No. 42,

47 p.

Plant, N.G. and Griggs, G.B., 1992, Inter-

actions between nearshore processes and

beach morphology near a seawall. Journal of

Coastal Research. 8, 183-200.

Shipman, Hugh, 1998, Shoreline change at

North Beach, Samish Island, Shorelands and

Environmenta! Assistance Program, WA

Dept. of Ecology, Pub. No. 98-101, Olympia,

44p.

Spalding, V.I., and Nancy L. Jackson, 2001,

Field Investigation of the Influence of bulk-

heads on Meiofaunal Abundance in the Fore-

shore of an Estuarine Sand Beach, Journal

of Coastal Research, v. 17, no. 2, p. 363-370.

Thom, R.M., Shreffler, D.K., and MacDonald,

K., 1994, Shoreline Armoring Effects on

Coastal Ecology and Biological Resources in

Puget Sound, Washington, Coastal Erosion

management Studies, v.7, Report 94-80,

Shorelands and Coastal Management Pro-

gram, Washington.

I declare under penalty of perjury that the

foregoing is true and correct.

Executed this [illegible] day of [illegible], 2004 at

Bellingham, Washington.

f /

/s/ illegible]

JAMES JOHANNESSEN

App. 56

Department of Ecology

Puget Sound Shorelines

Bulkheads Can Change The Beach

Bulkheads can increase jpg of

erosion of the beach vegetation

x

increased =F

SCOUTING a OE Na

le

a

“Sediment supply

blocked

()} Increased Beach Erosion

When waves reflect off shereline armoring structures,

particularly concrete bulkheads, they can scour away

sediments and increase erosion.

f

L]) Loss of Sand

In time, a sandy beach can be transformed into gravel

or cobbles — and may even be scoured down to bed-

rock, or more commonly in Puget Sound, a hard clay.

The footings of bulkheads may also be exposed,

leading to undermining and failure.

App. 57

_| Loss of Surrounding Beaches

Where long stretches of shore are lined with bulk-

heads and other hard armoring, beaches composed of

fine sediments can erode down to gravel, cobble, or

hardpan within a few decades.

[] Loss of Sediment

Bulkheads can shut off the supply of sand and gravel

to the beach, resulting in beach loss and the gradual

loss of finer sediment.

(| Loss of Plants

When bulkheads are built, overhanging trees and

shrubs are often removed. This can cause increased

siltation, reduced organic matter, and changes in

nearshore marine habitat.

[) Loss of Shade

The loss of bank vegetation reduces shade and shelter

on the upper beach. As a result, spawning habitat for

fc -age fish (such as surf smelt) may be degraded.

[) Loss of Habitat

Bulkheads and other armoring devices can degrade

the nearshore habitats that provide food for many

benthic feeding fish, including salmon. In addition,

spawning areas for surf smelt, sand lance, and

herring may be lost due to removal of fine sediments

from the intertidal zone.

App. 58

Armoring Effects on Species

Bulkheads and other armoring devices can change

important shoreline habitats. Shoreline areas used

by fish, shellfish, birds, marine mammals, and other

marine life may be damaged.

“oS

—

nS oe eo f

> a — = 5 —

~§8 ,9227285

ae ‘ onl GORE Seba es as mS = oa —_ 4 a S —- tall ~~ 3

CRG ee 1 Segoe eS SBS SBE

Lutulascineeitiariscaitiabumancntactietinnnd a wm GP iA Sa? TR od == Op A me

Armoring-related habitat shiff OO G@O'O'@. 0 = #28

Loss of spawning habitat no: oo = 8

Loss of shoreline vegetation ro

Loss of wetland vegetation {| - s |

Loss of large organic debris | | snio 8

Changes in food resources CDIO/O O} 'm mm |

Loss of migratory corridors : ame » |

KEY

m Viel documented evidence of negative effects.

E22 High potential for negate effects bui nor documented

CO) Some potential for long term effects but not documented

Source: Shoreline Armoring Effects on Coastal

Ecology and Biological Resources in Puget Sound

App. 59

Washington Coastal Erosion Management Studies,

Volume 7. Washington State Department of Ecology

August 1994