Petition for Writ of Certiorari — Washington v. United States

Court, U.S.

FILE D

98 1028 DEC 281998

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

October Term, 1998

PUGET SOUND SHELLFISH GROWERS.

Petitioners,

UNITED STATES OF AMERICA, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Michael Himes

Counsel of Record

Albert Gidan, Jr.

Perkins Coie Lip

1201 Third Avenue

Seattle, WA 98101-3099

(206) 583-8888

Attorneys for Petitioners

aBCD Legal Printers. Seattle. Washington

QUESTIONS PRESENTED

1. Whether the Ninth Circuit erred in holding, in

conflict with decisions of other circuits and this Court,

that a district court’s ruling on the intended meaning of

treaty language is a question of fact reviewed for clear

error?

2. Whether the Ninth Circuit erred in holding that

the equal footing doctrine had no application to the

tribes’ claim that they received easements in millions of

acres of land under Puget Sound’s navigable waters,

when other circuits and this Court have held that the

equal footing doctrine obligates a court to apply a strong

presumption that the United States did not make a pre-

statehood grant of rights in such lands in derogation of a

future state’s sovereignty?

3. Whether this Court should decide an open and

important question and apply the equitable doctrine of

laches, as suggested by four Justices in County of

Oneida v. Oneida Indian Nation, 470 U.S. 226, 255

(1985) (Stevens, J., joined by Rehnquist, J., dissenting),

in a case where the tribes delayed 135 years before

claiming a treaty right to enter and take shellfish from

privately owned shellfish farms, labored upon for

generations with no notice of the claimed treaty nght?

PARTIES AND RULE 29.6 LISTING

[he parties to the proceedings below were:

Petitioners: The Puget Sound Shellfish Growers

Association (“Growers’ ), intervenor-defendants,

appellants below, consists of Taylor United, Inc.;

Olympia Oyster Company; G.R. Clam & Oyster Farm;

Cedric E. Lindsay; Minterbrook Oyster Company:

Charles and Willa Murray; Skookum Bay Oyster

Company; and J & G Gunstone Clams, Inc.

Respondents:

a State of Washington, which was aligned as

defendant/appellant below.

The following three separate groups of private

property owners were aligned as intervenor-

defendants/appellants below, including:

b “Private Owners” Larry B. and Shirlee Alexander,

Harold E. and Billie B. Bauer, James and Ann

Carter, William J. and Jeanette Chase, Mrs.

Frances A. Fellows, George L. Grader, Earl D.

and Millicent Ann Hunsperger, Edward B. and

Eleanor J. Krenz, H.J. Merrick, Gordon W. Moss,

Sewall L. and Emma M. Reynolds, John D.

Riach, Alva Hazel B. Robb, Irene D. Smith and

Providence Worley.

c “Private Owners” William and Charmond Adkins,

Grace Boyd, Pierce W. and May H. Davis, Ms.

Rosemary Duncan, James E. Hadley, James C.

and Sarah H. Johnston, William and Jo Ann

-1l1-

Kirsh, David A. Mitchell, Mr. Louis Nawrot.

Robert and Sandra Stevenson. and Boon Ho Woo.

“26 Tideland and Upland Private Property

Owners of Washington”, Dan Buehler, Robert L.

Davis, Bruce I. Fielding, Arthur J. Gerdes. Joe

Hotts, Keith C. Heutson, Commander John C.

James, Richard Sayre Koch, Elaine C. Lefler.

Joan Lemonds-Roush, John S. Lewis, Steven L.

Luke, Edwards R. McMillan, Robert F. Newman.

Mark A. Hysether, Arthur I. Price. Ray D.

Randall, Cynthia Rasmussen, Robert G. Shanks.

Axel Strakejahn, Leana Tracy, Stuart W. Turner.

George B. Usnick, Lee S. Vincent, Joan Walker.

and William E. Whitney, Jr.

The plaintiffs, who were appellees/cross-

appellants below, are the United States and

certain Indian tribes: Muckleshoot: Nooksack:

Upper Skagit; Squaxin Island; Lummi: Makah:

Tulalip; Swinomish; Quileute; Puyallup; Hoh:

Suquamish; Confederated Tribes & Bands of the

Yakama Indian Nation: Nisqually; Jamestown

S’Klallam; Lower Elwha Klallam: Port Gamble

S’Klallam; Skokomish; Sauk-Suiattle: and

Stillaguamish.

There are no parent companies or subsidiary

companies with respect to the Growers. Supreme Court

Rule 29.6

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES AND RULE 29.6 LISTING

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

TREATIES INVOLVED

STATEMENT OF THE CASE

A The Growers Bought

and Cultivated Their

Lands in Reliance on the

Proviso

B The Indians Understood

the Proviso’s Plain

Meaning

C The Lower Court

Rulings

REASONS FOR GRANTING THE WRIT

PAGES(S)

IN CONFLICT WITH OTHER

CIRCUITS AND THIS

COURT, THE NINTH

CIRCUIT ABDICATED ITS

PROPER ROLE OF

PLENARY REVIEW OF THE

INTENDED MEANING OF

TREATY LANGUAGE

A The Conflict

B The Plain Meaning

Should Control

THE JUDGMENT

CONFLICTS WITH’ THE

EQUAL FOOTING

JURISPRUDENCE OF

OTHER CIRCUITS AND

THIS COURT

A The Equal Footing

Doctrine Protects. the

Federalism Interest in

Permitting Each State to

Fashion Its Tidelands

Policy to Allow Selling

Those Lands to Private

Ownef®s. .......00000.....00ccce.

B The Ninth Circuit’s

Refusal to Apply the

Equal Footing Doctrine

Further Conflicts With

Decisions of the Tenth

Circuit and This Court...

20

20

ee,

a

ry FT

ill

Che Ninth Circuit

Ignored This Court's

Equal Footing Cases

When It Broadly

Construed the Scope of

the Easements

LACHES SHOULD BAR THI

CLAIMS

-V1I-

TABLE OF AUTHORITIES

Cases

Air France v. Saks, 470 U.S. 392 (1985)

Anderson v. Bessemer City, 470 U.S. 564

(1985)

Blum v. Stenson, 465 U.S. 886 (1984)

Cannon v. United States, 973 F.2d 1190 (Sth

Cir. 1992)

Chandris, Inc. v. Latsis. 515 U.S. 347 (1995)

Choctaw Nation v. Oklahoma. 397 U.S. 620

(1970)

Choctaw Nation v. United States 318 US

423 (1943)

Confederated Tribes v. Washington, 96 F.3d

334 (9th Cir. 1996), cert. denied, 520 U.S

1168 (1997) ..

County of Oneida v. Oneida Indian Nation,

470 U.S. 226 (19835)......

Coyle v. Smith, 221 U.S. 559 (1911).

Cree v. Flores, 157 F.3d 762 (9th Cir. 1998)

passim

“1

ae |

-Vill-

row Tribe of Indians v. Repsis, 73 F.3d 982

(10th Cir. 1995). cert. denied, 517 U.S

1221 (1996) 22. 23

Department of Game v. Puyallup Tribe, 414

US. 44 (1973) 4

Garcia v. United States. 469 U.S. 70 (1984) S

Hardin v. Jerdan. 140 U.S. 371 (1891) 24

Idaho v. Coeur d'Alene Tribe. 117 S. Ct. 2028

(1997) 20. 2]

James v. State, 950 P.2d 1130 (Alaska 1997) 21

Kreimerman v. Casa Veerkamp, S.A., 22 F.3d

634 (Sth Cir. 1994) 10, 14

Lewis v. Marshall, 30 U.S. (5 Pet.) 470 (1831) 30

MacNamara v. Korean Air Lines, 863 F.2d

1135 (3d Cir. 1988) 10. 13

Martin v. Waddell. 41 U.S. (16 Pet.) 367

(1842) 24

Massachusetts v. New York. 271 U.S. 65

(1926) 22, 28

Montana v. United States. 450 U.S. 544

(1981) 4 ae ow

Nollan v. California Coastal Comm'n, 483

U.S. 825 (1987)... Fe a 23

Oregon Department of Fish & Wildlife v.

Klamath Indian Tribe, 473 U.S. 753 (1985) 19

-~l1X-

Pollard v. Hagan, 44 U.S. (3 How.) 212

(1845)

Puyallup Tribe v. Department of Game, 391

U.S. 392 (1968)

Puyallup Tribe, Inc. v. Department of Game,

433 U.S. 165 (1977)

Rainbow Navigation, Inc. v. Department of

Navy, 911 F.2d 797 (D.C. Cir. 1990)

Seufert Bros. v. United States, 249 U.S. 194

(1919)

Shively v. Bowlby, 152 U.S. 1, 52 (1894)

labion v. Mufti, 73 F.3d 535 (4th Cir. 1996)

lulee v. Washington, 315 U.S. 681 (1942)

United States v. Alvarez-Machain. 504 U.S

ener ee es hc eet,

United States v. Choctaw Nation, 179 U.S.

494 (1900)............

United States v. Repsis, 73 F.3d 982 (10th

SE 5. >) RO eet eR AEE

United States v. Stuart, 489 U.S. 353 (1989)

United States v. Winans, 198 U.S. 371 (1905).....

Utah v. United States, 482 U.S. 193 (1987) ....

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass’n., 443 U.S.

aE | Maer PAE

>

10. 13

4, 26, 27, 28

passim

10, 13

4

9)

14,15

........ passim

95

... passim

Williams v. City of Chicago, 242 U.S. 434

(1917) Pe

Wisconsin v. Baker, 698 F.2d 1323 (7th Cir

1983) 21

Statutes and Treaties

28 U.S.C. § 1254 2

Treaty of Medicine Creek, December 26,

A, Oe NE. SOIR hrsespsndora oi atneeesetcatnon 2

Treaty of Point Elliott, January 22, 1855,

he PG It viuveevvnnscapenrkésecengomniniaaeeson hace veh ceasaucners 2

Treaty of Point No Point, January 26,

Se Ay. Ge I PE oe siocenccncre ek rnacdnanse ek eetee cme ene 2

Treaty with the Makah, January 31, 1855,

SS. SNR Etats ORCAS Rene ath Aa ARSE 2

Treaty of Olympia, July 1, 1855,

Ble UN OY Bs peeneetaeveerenre oad ee ee 2

Rules

Supreme Court Rule 29.6 il

Constitutional Provisions

U.S. Const. art. II, § 2 12

ated

No.

In the

Supreme Court of the United States

October Term, 1998

PUGET SOUND SHELLFISH GROWERS.

Petitioners,

V.

UNITED STATES OF AMERICA, et al..

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The Ninth Circuit’s initial opinion is reported at 135

F.3d 618. Its amended opinion, granting a timely petition

for rehearing and denying a suggestion for hearing en

banc, was filed September 25, 1998, and is reported at

157 F.3d 630. Appendix (“App.”) at Al-49. The

opinions of the district court (W.D. Wa.) are reported at

873 F. Supp. 1422, App. at B1-43: 898 F. Supp. 1453,

App. at C1-42; and 909 F. Supp. 787, App. at D1-13.

JURISDICTION

The Ninth Circuit entered its final judgment on

September 25, 1998. This Court has jurisdiction to issue

a writ of certiorari pursuant to 28 U.S.C. § 1254.

TREATIES INVOLVED

Treaty of Medicine Creek, December 26, 1854, 10

Stat. 1132; Treaty of Point Elliott, January 22, 1855, 12

Stat. 927; Treaty of Point No Point, January 26, 1855,

12 Stat. 933; Treaty with the Makah, January 31, 1855,

12 Stat. 939; Treaty of Olympia, July 1, 1855, 12 Stat.

971. App. at JI-N7.

STATEMENT OF THE CASE

Petitioners, the Puget Sound Shellfish Growers

Association (the “Growers’”), are commercial shellfish

farmers. Emblematic of the hundreds of such farmers

who cultivate shellfish up and down Puget Sound are

Growers such as Cedric Lindsay who has farmed oysters

for 43 years on two small tideland parcels adjoining his

home, and Taylor United, Inc., a five-generation, family-

run company employing 165 people and selling shellfish

worldwide. Among other Growers is the Olympia Oyster

Company, which was first incorporated in 1878; its

present farm includes tidelands orginally granted by the

territorial legislature in 1864. Glen Rau, who owns G.R.

Clam & Oyster Farm, is a fifth-generation Grower

whose family has farmed shellfish since 1900. His great-

great-grandfather acquired his first tideland parcel from

a member of the respondent Squaxin Island Tribe.

The Growers own their tidelands in fee simple by

virtue of grants from the state of Washington. In some

;

4

————————

instances, the Growers’ tidelands are not naturally

productive but contain shellfish solely as a result of the

Growers’ cultivation activities. In other instances, the

Growers’ tidelands naturally produce shellfish but the

Growers augment that production by a variety of

cultivation techniques.

The Ninth Circuit ruled in this case that provisions

in five treaties securing to the tribes the “right of taking

fish at all usual and accustomed grounds and stations”

gave the tribes the right--first asserted 135 years after the

treaties were ratified by the United States Senate--to

enter the Growers’ privately owned tidelands and

harvest shellfish from beds cultivated or staked by the

Growers. The court reached this conclusion despite a

Shellfish Proviso in each treaty that explicitly stated the

contrary:

Provided, however, that they shall

not take shellfish from any beds

staked or cultivated by citizens.

The Ninth Circuit recognized “the enormous impact

our decision will have on the thousands of homeowners,

Inbal members, and commercial fishermen in the Puget

Sound region.” App. at A42. With regard to the

Growers’ laches argument, the court also conceded that

the “equities do weigh heavily in favor of the Growers’

argument.” App. at A28.

Nevertheless, the Ninth Circuit authorized the tribes

to enter the Growers’ private land and harvest from beds

cultivated by the Growers. In so doing, and in conflict

with the decisions of four other circuit courts and this

Court, the court abdicated its responsibility to review the

-4-

intended meaning of treaty language as a question of law

and instead deferred to a supposed factual finding by the

district court that the parties intended the Proviso to

mean something other than what is indicated by its plain

language. In conflict with the Tenth Circuit’s and this

Court’s opinions, the court also refused to apply

established principles of the equal footing doctrine,

which requires that the Proviso be interpreted in light of

a strong presumption that the United States did not

intend to make a pre-statehood conveyance of nghts in

the state’s sovereign lands under navigable water.

Finally, the court did not apply the doctrine of laches,

even though the tribes waited 135 years to assert their

treaty claims.

The Ninth Circuit’s decision undermines principles

of federalism and disrupts long-standing property nghts,

transferring to the tribes the fruits of the Growers’

substantial investments in shellfish cultivation. As Judge

Beezer recognized in his concurrence, this case warrants

Supreme Court intervention to ensure “survival of

Washington’s shellfish industry.” App. at A46.

Over the past century, this Court has considered the

Indian treaties at issue in this petition in seven opinions,

beginning in 1905 and most recently in 1979.!_ Under

! United States v. Winans, 198 U.S. 371 (1905); Seufert Bros.

v. United States, 249 U.S. 194 (1919); Tulee v. Washington, 315

U.S. 681 (1942); Puyallup Tribe v. Department of Game, 391 US.

392 (1968); Department of Game v. Puyallup Tribe, 414 U.S. 44

(1973); Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165

(1977), Washington v. Washington State Commercial Passenger

Fishing Vessel Ass'n, 443 U.S. 658 (1979).

no

ae

the treaties, the tribes secured their aboriginal “right of

taking fish, at all usual and accustomed grounds and

stations.” Fishing Vessel, 443 U.S. at 674. Each of this

Court’s seven opinions has focused solely on the tribes’

fishing right to take anadromous fish (salmon and

steelhead). /d. at 665 n.6. Not one of this Court’s seven

salmon opinions has addressed or interpreted the

Proviso. Unlike the nght to take salmon, the tribes did

not secure all of their aboriginal right to take shellfish at

their usual and accustomed grounds and stations: the

tribes ceded to the United States their aboriginal right to

take shellfish at those places if they were “staked or

cultivated by citizens.”

The Ninth Circuit rejected the Proviso’s plain

meaning, which protected from tribal harvest any beds

that the Growers had staked or cultivated. Instead, the

court deferred to the district court’s conclusion that the

United States intended the Proviso to incorporate for all

time a rule of law prohibiting staking or cultivating of

natural beds of shellfish. The court ruled, based on a

non-uniform rule of state law on the east coast in the

1850s, that the Proviso was intended to protect from

tribal harvest not “any beds staked or cultivated by

citizens,” as the plain language of the treaty provides,

but only “artificial” beds—namely, beds that did not

contain a natural bed (defined as a commercial density

of shellfish) when cultivation began. App. at A26, A35.

A. The Growers Bought and Cultivated Their

Lands in Reliance on the Proviso.

The Growers cultivate a portion of the millions of

acres of Puget Sound’s bedlands and its 2227 miles of

tidelands. App. at C8. For 135 years after the treaties

sie

were entered, the Growers purchased and then cultivated

their tidelands without any notice of a claimed treaty

right. App. at C3 (the “Growers and Private Property

Owners are, effectively, innocent purchasers who had no

notice of the Tribes’ Treaty fishing mght when they

acquired their property’). Relying on the state’s fee title

as the source of their property, the Growers have

cultivated shellfish on their tideland farms.

Dependent on the fluctuating tides, the Growers

labor at any time of day or night to cultivate their crops.

The Growers till and bank their soil. They remove

predators. They gravel the tidelands for better growing

conditions and to better catch or “cultch” free-floating

shellfish larvae. They seed their farms with young

shellfish raised in nurseries or captured in the wild. They

break up and move their oysters around their farms for

better growth and marketability. It is undisputed that

these labors have vastly increased the productivity of the

Growers’ farms. All of these activities, while assisted

today by modern technology, are identical to the

cultivation activities of nineteenth century shellfish

farmers. Compare Exhs. D-004, D-113, and D-132 with

Exhs. D-481 to D-488.

Given the enormous investment of labor and money

in their farms, the Growers excluded all others from

entering their land and taking their crops. The financially

crippling effect of allowing others to enter private farms

and take a portion of the Growers’ crops is self-evident.

See, e.g., Testimony of Jim Edwards, Tr. at 657 (If the

tribes are entitled to 50% of his crops “it will be pretty

drastic for me. I’m--I think within a fairly short period of

time, | would be bankrupt.”).

Le

=4.

B. The Indians Understood the Proviso’s Plain

Meaning.

The Indians at treaty time understood the concepts

of staking and cultivating. The Indians themselves

cultivated resources, including shellfish. GER 32-34.

The Indians themselves requested that the settlers stake

their lands. ER 733. The tribes’ own witness testified

that the concepts of staking and cultivating were easily

explained in the Chinook jargon used to explain the

treaties to the Indians. Tr. at 337. That same witness

testified that the Indians could not have understood, and

would have been very confused by, any attempt to

explain east coast shellfish law. /d

The Indians’ post-treaty conduct also reveals that

they understood the Proviso’s plain meaning. Not once

in the 135 years after the treaties were ratified did the

Indians protest the Growers’ activities or seek to enter

their farms and take their shellfish. Indeed, before this

case was filed in 1989, the Indians and their agents

agreed that the Proviso has its plain meaning. The tribes’

primary expert in the salmon cases, Dr. Barbara Lane.

testified in an earlier trial that the Indians understood

they could lose a “treasured shellfish bed” because

settlers could stake or cultivate such beds “anywhere.”

GER 17. Similarly, the Suquamish Tribe previously

admitted in briefing to the Ninth Circuit that “[ujnlike

the in common shellfish right, the in common salmon

right is not defeasible by staking or cultivating.” GER 2.

C. The Lower Court Rulings.

Against this backdrop of settled property interests

and the uniformly understood plain meaning of the

-8-

Proviso, the Ninth Circuit interpreted the treaties. It did

so by ignoring the Proviso’s plain meaning and

erroneously deferring to the district court’s conclusion

that the parties intended the Proviso’s meaning to

incorporate a non-uniform rule of state law in the east.

At treaty time, most but not all states on the east

coast prohibited shellfish farmers from staking or

cultivating natural beds of shellfish. Based on the law in

those states, the district court ruled that the Growers had

the property nght to exclude Indians from the Growers’

farms and to prevent them from taking their crops only if

the Growers’ shellfish beds were “artificial,” 1.e., only if

the beds did not contain a commercially harvestable

quantity of shellfish when cultivation began. App.

at B27-28, C10-11. After a second tnal to determine

how to implement the treaty nght, the district court ruled

that changes in the tidelands since treaty time made it

virtually impossible to determine whether the Growers

had started their farms on “natural” or “artificial” beds.

App. at C13-14. Accordingly, the district court ruled that

all of the Growers’ cultivated shellfish beds were “de

facto” artificial, thereby protecting the fruits of the

Growers’ labors from tribal harvest. App. at C12-13.

On appeal, the Ninth Circuit affirmed the tnal

court’s interpretation of the Proviso, but reversed the

trial court’s ban on tribal harvest from the Growers’

farms. App. at A29-32. The Ninth Circuit held that the

tribes had no nght to take shellfish from “artificial”

beds, but that they were entitled to take from the

Growers one-half of the natural background amount of

shellfish that existed on “natural” beds at the time

cultivation began. App. at A34. The Ninth Circuit

allocated to the Growers the burden of proving that their

——————————————

-9-

beds were “artificial.” App. at A34-35. If the Growers

are unable to prove their beds were “artificial” when

cultivation began, sometimes over 100 years ago, the

tribes have a right to a portion of the Growers’ crops. If

they are unable to prove a bed is “artificial,” the

Growers then bear the additional burden of proving the

quantity of shellfish that existed on that bed when

cultivation began. App. at A34-35. Judge Beezer rightly

termed these burdens on the district court and the

Growers “daunting” and “heavy.” App. at A45.

The Ninth Circuit judgment upsets settled interests

in private property and adversely affects the livelihood

of the Growers and their employees. As Judge Beezer

stated in his concurring opinion, the judgment

“trample[s]” on “property rights, so fundamental to

American government.” App. at A46. Judge Beezer’s

concurrence invited this Court to grant the writ because

the “[sJurvival of Washington’s shellfish industry

depends upon the growers’ ability to dedicate tidelands

to exclusive use.” App. at A46.

REASONS FOR GRANTING THE WRIT

The Ninth Circuit’s judgment, allowing the tribes to

enter private tidelands and take crops from the Growers’

shellfish farms invested in and labored upon for

generations, will cripple or destroy the Growers and the

very shellfish industry that the Proviso was designed to

protect. The judgment also does great violence to the

settled and reasonably relied upon property rights of the

Growers and thousands of other Washingtonians who

own tidelands on Puget Sound.

-10-

The petition also should be granted because the

Ninth Circuit’s judgment is in direct conflict with other

circuits’ and this Court’s decisions in two ways.

First, the Ninth Circuit only reviewed the district

court’s conclusion on the meaning of the Proviso

intended by the United States and the tnbes for clear

error, in direct conflict with the decisions of other

circuits and this Court that an appellate court must

subject a treaty’s intended meaning to plenary and

searching review. See, e.g., Fishing Vessel, 443 U.S. 658

(treaty’s intended meaning subjected to searching review

with no deference to tral court ruling on intended

meaning of treaty language); Rainbow Navigation, Inc.

v. Department of Navy, 911 F.2d 797 (D.C. Cir. 1990)

(same); MacNamara v. Korean Air Lines, 863 F.2d 1135

(3d Cir. 1988) (same); Zabion v. Mufti, 73 F.3d 535 (4th

Cir. 1996) (same); Kreimerman v. Casa Veerkamp, S.A.,

22 F.3d 634 (Sth Cir. 1994) (same).

Second, the Ninth Circuit’s judgment has shorn the

state of Washington of its equal footing nght to fashion

its own tidelands policy, which for nearly a hundred

years permitted sale of tidelands and shellfish beds to the

Growers. In direct conflict with the decisions of other

circuits and this Court, the Ninth Circuit refused to apply

the equal footing doctrine and the state of Washington

now stands alone and unequal among the states,

deprived of a fundamental and essential attribute of its

sovereignty, the sovereign right to control its policy over

millions of acres of its lands under navigable waters.

This Court’s review of the Ninth Circuit’s refusal to

apply the equal footing doctrine is_ particularly

appropriate given the vast expanse of land at issue, an

area greater than the combined area of the states of

-1]1-

Delaware and Rhode Island, as well as the thousands of

people affected by the judgment.

The Growers also ask this Court to decide the

important and unresolved question left open by the

opinions in Oneida of whether the tribes’ 135-year delay

in asserting easements to enter the Growers’ farms and

take the Growers’ shellfish should bar the tribes’ claim

under the equitable doctrine of laches. In keeping with

the principles articulated by Justice Stevens in his

Oneida dissent, this Court should apply laches to bar a

claim that destroys the Growers’, and thousands of other

Washingtonians’, reasonable and settled expectations in

the exclusive use of their property.

L. IN CONFLICT WITH OTHER CIRCUITS AND

THIS COURT, THE NINTH CIRCUIT

ABDICATED ITS PROPER ROLE OF

PLENARY REVIEW OF THE INTENDED

MEANING OF TREATY LANGUAGE.

The Ninth Circuit’s decision created a conflict with

the decisions of other circuits and this Court when it

held that the district court’s conclusions regarding the

“intentions of the parties’ negotiators” were to be

reviewed under the “deferential” clear error standard of

review. App. at Al6, A26.

Reviewing the intention of the parties for clear error

is an improper abdication of the role of an appellate

court because the intentions control the meaning of the

treaty. As this Court said in Fishing Vessel, “it is the

intention of the parties, and not solely that of the

superior side, that must control any attempt to interpret

the treaties.” 443 U.S. at 675. See also United States v.

ce.

Choctaw Nation, 179 U.S. 494, 531 (1900) (“All agree

that as a general rule in the interpretation of written

instruments the intention of the parties must control, and

that such intention is to be gathered from the words used

_...’). If the imtentions of the United States and the

tribes are reviewed only for clear error, treaty

interpretation becomes a question of fact. It is precisely

to avoid that result that other circuits and this Court have

exercised searching and plenary appellate review of the

intended meaning of a treaty, even if a district court

ruled that the parties “intended” a particular meaning.

That other circuit courts and this Court have always

conducted a plenary review of the intended meaning of a

treaty should come as no surprise. Treaties, which must

be signed by the President and ratified by the Senate,

U.S. Const. art. Il, § 2, are interpreted like statutes.

United States v. Alvarez-Machain, 504 U.S. 655, 663-65

(1992) (analogizing process of interpretation of treaties

and statutes and analyzing language of treaty and the

“history of [the] negotiation”); Cannon v. United States,

973 F.2d 1190, 1192 (Sth Cir. 1992) (“Courts construe

treaties just as they do statutes.”) (citing A/varez-

Machain). The interpretation of a statute and Congress’

intent in enacting it are, of course, questions of law. See,

e.g., Chandris, Inc. v. Latsis, 515 U.S. 347, 369 (1995);

Blum v. Stenson, 465 U.S. 886, 896-97 (1984).

No appellate court would defer to a district court’s

“findings” on legislative history nor would one consider

deferring to a district court’s “finding” that Congress

intended a statute to have a particular meaning. Yet, in

conflict with numerous courts of appeal and this Court,

the Ninth Circuit did exactly that when it deferred to the

By iS

district court’s “findings” on the Proviso’s intended

meaning.

A, The Conflict.

The Ninth Circuit’s deference to the district court’s

conclusions on the Proviso’s intended meaning conflicts

with the opinions of four other circuits.

In Rainbow Navigation, Inc. y. Department of Navy,

911 F.2d 797 (D.C. Cir. 1990) (D. Ginsburg, J., joined

by then-Judge R.B. Ginsburg), the D.C. Circuit rejected

the district court’s conclusion that a treaty with Iceland

had a particular intended meaning in light of statements

made by Executive officials in the legislative history. Jd.

at 798. The court independently reviewed the treaty

language along with the legislative history of the Senate

ratification proceedings and, paying no deference to the

trial court’s ruling, reversed. Jd at 802.

In MacNamara v. Korean Air Lines, 863 F.2d 1135

(3d Cir. 1988), the Third Circuit reviewed a district

court’s ruling on the intended meaning of a treaty

between the United States and Korea. Defining its role

as “limited to ascertaining and enforcing the intent of the

treaty parties,” id at 1143, the court conducted a

searching review of the “history of the negotiations” to

discemi the meaning that “the signatories intended,” id

at 1144-45. After plenary review, the court rejected the

district court’s conclusion regarding what the negotiators

intended the treaty to mean and reversed. /d at 1 145-46.

In Tabion v. Mufti, 73 F.3d 535 (4th Cir. 1996), the

Fourth Circuit reviewed the district court’s

determination of the intended meaning of language in the

sikh

Vienna Convention. The Fourth Circuit stated that it was

required to conduct a de novo review of the treaty’s

meaning and that the treaty “should be construed to give

effect to the intent of the signatories.” /d. at 537. In so |

doing, the court considered “the history of the treaty, the

negotiations, and the practical construction adopted by |

the parties.” Jd Paying no deference to the district |

court’s rulings, the court then made its own

determination of the treaty meaning “intended by the

signatories.” Jd. at 538.

In Kreimerman v. Casa Veerkamp, S.A., 22 F.3d 634

(Sth Cir. 1994), the Fifth Circuit reviewed the district |

court’s judgment on the intended meaning of a treaty.

The court deemed “inconsequential” its inability to

discern the basis for the district court ruling, because the

intended meaning of treaty language requires plenary

review. /d. at 639. The court then extensively canvassed

the “language, history, and purpose” of the treaty, id. at

638, to determine the treaty’s intended meaning,

including “non-textual” evidence of intent, id at 642,

and reversed.?

2 The Ninth Circuit created a related conflict with the Fifth

Circuit when it evaluated evidence extrinsic to the treaty language

before first considering whether that language was ambiguous on

the face of the treaty documents. Kreimerman holds that

examination of extrinsic evidence is inappropriate absent a finding

of ambiguity on the face of the treaty. 22 F.3d at 638. The Ninth

Circuit’s approach conflicts with that holding, conflating the

evaluation of extrinsic evidence with the initial determination of

whether the treaty is ambiguous on its face. See also United

States v. Stuart, 489 U.S. 353, 370 (1989) (Kennedy, J., joined by

O’Connor, J., concurring) (there is no need to look to nontextual

sources to determine treating parties’ intended meaning because

cea

-15-

Like these circuit courts, this Court has repeatedly

made clear that the intended meaning of treaty language

is a question of law. When reviewing lower court rulings

on the meaning of language intended by the treating

parties, this Court has paid no deference to the lower

courts and has conducted its own independent and

searching review to determine the meaning of treaty

language intended by the parties. See, e. g., Air France v.

Saks, 470 U.S. 392, 399 (1985) (looking to negotiating

history and stating that “it is our responsibility to give

the specific words of the treaty a meaning consistent

with the shared expectations of the contracting parties’):

Fishing Vessel, 443 U.S. at 674-79 (extensively

canvassing the record of treaty meaning and ruling on

treaty meaning independently of determinations made by

lower courts); Choctaw Nation v. Oklahoma, 397 U.S.

620 (1970) (same).

The Ninth Circuit fell into error because it posited a

distinction between appellate review of the United

States’ and tribes’ intended treaty meaning, on the one

hand, and appellate review of the treaty’s legal meaning,

on the other hand. App. at Al6. (“We therefore review

for clear error all of the district court’s findings .. .

regarding the treaty negotiators’ intentions. We then

review de novo whether the district court reached the

proper conclusion as to the meaning of the Shellfish

“[t]he intent of the Treaty signatories is manifest from the language

of the document itself’); id at 37] (Scalia, J. concurring) (“‘the

Treaty’s language resolves the issue presented, there is no necessity

of looking further to discover the intent of the Treaty parties”):

Garcia v. United States, 469 US. 70, 75 (1984) (Rehnquist, J.)

(“When we find the terms of a statute unambiguous, judicial inquiry

is complete, except in rare and exceptional circumstances.”)

RGa

Proviso given those findings.”). This distinction and the

two-step review process hypothesized by the Ninth

Circuit, however, are entirely iilusory. As discussed

above, the intended meaning and the legal meaning of

the treaty are the same issue. Indeed, in the decision that

the Ninth Circuit reviewed for clear error in this case,

the district court treated the parties’ intentions and the

treaty meaning as the same question. See B4 (“the

parties’ intentions dictate the interpretation of a treaty”).

The best illustration that the Ninth Circuit’s second

step of “de novo” review 1s wholly illusory 1s found in

the court’s own statement of its holding: “Given the

deferential standard by which we review the district

court’s findings of histoncal fact and its findings

regarding the intentions of the parties’ negotiators, we

conclude the district court did not err in interpreting the

Proviso and we adopt its analysis as our own.” App.

at A26 (emphasis added). As this language makes clear,

because of the “deferential standard” it employed, the

court reviewed the district court’s interpretation of the

Proviso only for clear error. It never conducted a de

novo review because, once it had deferred to the district

court’s “findings regarding the intentions of the parties’

negotiators,” id., there was no interpretation left to be

done. Fishing Vessel, 443 U.S. at 675 (“it 1s the intention

of the parties . . . that must control any attempt to

interpret the treaties”).

Importantly, this is not an isolated error by the Ninth

Circuit. The court felt compelled to defer to the distnct

court based on the court’s earlier opinion in

Confederated Tribes v. Washington, 96 F.3d 334 (9th

Cir. 1996), cert. denied, 520 U.S. 1168 (1997). Thus, the

Ninth Circuit is now routinely applying an erroneous

‘i.

standard of review to an important category of cases

affecting many people. See also Cree v. Flores. 157 F.3d

762, 774 (9th Cir. 1998) (reviewing for clear error the

district court’s conclusion on the meaning of treaty

language intended by the parties as factual findings

determinative of treaty meaning: “The district court

undertook a careful inquiry into the intentions of the

parties at Walla Walla and, given the evidence. its

interpretation [of the treaty] is certainly plausible.”’).

The effect of the Ninth Circuit’s erroneous standard

of review is severe. The Ninth Circuit has effectively

ceded control over interpretation of treaty language to

the district courts. This is so because a trial court ruling

that the tribes and the United States intended a treaty to

mean X will, if such a ruling is deemed a “factual”

finding reviewed for clear error. virtually require the

reviewing court to affirm that the treaty means X.

Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)

(“If the district court’s account of the evidence is

plausible in light of the record viewed in its entirety, the

court of appeals may ot reverse it even though

convinced that had it been sitting as the trier of fact. it

would have weighed the evidence differently.”’).

The Ninth Circuit’s holding affects every case in the

westem states, a circuit where this Court’s seven salmon

opinions show that the meaning of Indian treaties is a

subject of great importance and much litigation. The

importance of Indian treaty interpretation to countless

people in the Ninth Circuit, including numerous Indian

tribes, is manifest. Given the importance of treaty

interpretation, this Court should grant the writ to resolve

the conflict and make clear that the question of treaty

meaning requires more than appellate deference to a

-18-

“plausible” treaty meaning based upon district court

“findings” that the treating parties intended that

meaning. Just like the intended meaning of statutes, the

meaning of the Proviso intended by the United States

and the tribes requires thorough and searching appellate

review, such as the review this Court conducted in

Fishing Vessel. Only then will :mportant questions

concerning the meaning of treaties, including their effect

on settled property interests, receive the proper measure

of judicial scrutiny.

B. The Plain Meaning Should Control.

The Ninth Circuit’s adherence to a clear error

standard had a significant impact on the resolution of

this case. If the meaning of the treaty intended by the

parties had been subjected to plenary review, as would

have been done in the D.C., Third, Fourth, and Fifth

Circuits, the district court’s conclusion on the meaning

of the Proviso--that treaty language barring harvest from

“any beds staked or cultivated by citizens” was intended

by the parties to exclude tnbal harvest from just some

beds, “artificial” ones--would have been reversed.

First, the interpretation accepted by the tral court

and deferred to by the Ninth Circuit fails to give the

phrase “any beds staked or cultivated by citizens” its

plain meaning. Any beds means any beds, not just some

beds. It does not matter whether the Growers have

staked or cultivated on a “natural” or an “artificial” bed

when the undisputed evidence is that they have engaged

in both activities. The Ninth Circuit failed to give the

simple words of the Proviso their plain meaning, in

violation of Choctaw Nation v. United States, 318 U.S.

423, 432 (1943) (“Indian treaties cannot be re-written or

<Q.

expanded beyond their clear terms to remedy a claimed

injustice or to achieve the asserted understanding of the

parties.”).3

Second, the judgment is predicated upon the “highly

dubious assumption,” Fishing Vessel, 443 US. at 677

n.23, that the treaty makers intended to incorporate the

intricacies of east coast state law into the meaning of the

treaties. In Fishing Vessel, this Court counseled against

this very reasoning and rejected it. /d It should have

been rejected here. /d. at 676 (An Indian treaty “ ‘must

therefore be construed, not according to the technical

meaning of its words to learned lawyers, but in the

sense in which they would naturally be understood by

the Indians.’ ”) (citation omitted).

Third, the actual conduct of the parties for 135 years

after the Senate ratified the treaties permits only one

conclusion--everyone understood the Proviso’s plain

meaning. It is undisputed that for 135 years the Indians

and the settlers alike understood that Indian access to

shellfish could be and would be diminished as tidelands

and bedlands were staked or cultivated. The tribes’ own

lawyers and witnesses admitted that the Proviso allowed

3 Because the Proviso’s meaning is plain, a review of the

parties’ conduct to shed light on the meaning of the treaties is

unnecessary. Nevertheless, the parties’ conduct corroborates the

plain meaning of the Proviso. Oregon Department of Fish &

Wildlife v. Klamath Indian Tribe, 473 US. 753, 774 (1985)

(“[E]ven though legal ambiguities are resolved to the benefit of the

Indians, courts camiot ignore plain language that, viewed in

historical context and given a fair appraisal, clearly runs counter to

a tribe’s later claims.”’) (internal citations omitted).

my, |

Indians to lose “treasured shellfish beds,” as settlers

could stake or cultivate “anywhere.” The Indians were

silent for 135 years because they knew and understood

the Proviso’s plain meaning that natural beds of shellfish

were subject to being claimed by settlers.

i. THE JUDGMENT CONFLICTS WITH THE

EQUAL FOOTING JURISPRUDENCE OF

OTHER CIRCUITS AND THIS COURT.

A. The Equal Footing Doctrine Protects the

Federalism Interest in Permitting Each

State to Fashion Its Tidelands Policy to

Allow Selling Those Lands to Private

Owners.

Because ownership of land under navigable

waters “uniquely implicate[s] sovereign interests,” /daho

v. Coeur d'Alene Tribe, 117 S. Ct. 2028, 2041 (1997),

this Court has held for over 150 years that courts faced

with the question whether the United States made a pre-

statehood grant or reservation of mght in land under

navigable water must begin with a strong presumption

against the grant or reservation and in favor of state

ownership.

A court deciding a question of title to the

bed of a navigable water must... begin

with a_ strong presumption § against

conveyance by the United States, and must

not infer such a conveyance unless the

intention was definitely declared or

otherwise made very plain, or was

rendered in clear and especial words, or

unless the claim confirmed in _ terms

mt.

—

embraces the land under the waters of the

stream.

Montana v. United States, 450 U.S. 544. 552 (1981)

(internal citations omitted). Accord Shively v. Bowlby,

152 US. 1, 52 (1894); Pollard v. Hagan, 44 US. (3

How.) 212, 230 (1845).

Our federal system compels the stringency of the

"Strong presumption” against finding an exercise of the

United States’ power to defeat a future state’s control

Over its sovereign lands. The Constitution mandates “a

union of states, equal in power, dignity, and authority,

each competent to exert that residuum of sovereignty not

delegated to the United States by the Constitution itself.”

Coyle v. Smith, 221 U.S. 559, 567 (1911). Thus, a state’s

title and equal footing right to its “sovereign lands”

under navigable water “arises from the equal footing

doctrine and is conferred not by Congress but by the

Constitution itself.” Jdaho, 117 S. Ct. at 2041 (citation

omitted).

In line with this Court’s 150 years of equal

footing jurisprudence, other courts have consistently

applied the equal footing doctrine and applied the strong

presumption against pre-statehood grants of land under

navigable water. Wisconsin v. Baker, 698 F.2d 1323 (7th

Cir. 1983) (applying equal footing doctrine to tribal

claim to levy fees on non-tribal members fishing in tribal

waters); James v. State, 950 P.2d 1130 (Alaska 1997)

(applying equal footing doctrine to decide ownership of

lands under navigable waters). The Ninth Circuit should

have done likewise, and applied the “strong

presumption” that the United States did not intend to

create the claimed easements. See also Shively, 152 U.S.

as.

at 10 (under the equal footing doctrine, a grant of an

interest in land will be found only if it is an

“unavoidable construction”); Massachusetts v. New

York, 271 U.S. 65, 89 (1926) (same).

B. The Ninth Circuit’s Refusal to Apply the

Equal Footing Doctrine Further Conflicts

With Decisions of the Tenth Circuit and

This Court.

The Ninth Circuit distinguished away this long

line of authority on two grounds. First, it held that the

equal footing doctrine applies only to claims that the

United States conveyed fee title or full beneficial

ownership and not to claims that the United States

conveyed only easements. App. at A21-22. Second, it

held that the doctrine does not apply because the tnbes

claim that their nght to take shellfish was “reserved” by

them rather than granted by the United States. App.

at A21-22. The two grounds relied upon by the Ninth

Circuit to avoid the equal footing doctrine are in direct

conflict with the law in the Tenth Circuit and this Court.

The Ninth Circuit’s judgment that the equal

footing doctrine does not apply to “reserved” nghts of

less than full fee title conflicts with the Tenth Circuit’s

opinion in Crow Tribe of Indians v. Repsis, 73 F.3d 982

(10th Cir. 1995), cert. denied, 517 U.S. 1221 (1996). In

Repsis, the tibe claimed a “reserved” treaty nght to hunt

on unoccupied land. Jd at 986. The Tenth Circuit

applied the equal footing doctrine to interpret the

claimed “reserved” hunting night. Jd. at 992-93. The

Tenth Circuit also applied the equal footing doctrine

even though the tnbe did not claim fee title to the land.

Id. Repsis is in direct conflict with the Ninth Circuit’s

judgment that the equal footing doctrine has no

application either to “reserved” treaty mghts or to

claimed treaty rights of less than full fee title 4

The decisions of this Court also hold that the

“strong presumption” of the equal footing doctrine

cannot be circumvented by holding that it applies only to

fee title or full beneficial Ownership and not to

easements. This Court was clear in Shively that the

purpose of the doctrine was to leave “the administration

and disposition of the sovereign rights in navigable

waters, and in the soil under them, to the control of the

siates.” 152 U.S. at 58 (emphasis added). Moreover, as

this Court made clear in Nollan v. California Coastal

Comm'n, 483 U.S. 825 (1987), an easement is no less a

constitutionally protected property interest than is full

beneficial ownership. /d. at 831 (noting that the right to

control access to land is “one of the most essential sticks

in the bundle of rights that are commonly characterized

as property”) (citations omitted).

Failing to apply the equal footing doctrine to an

easement for purposes of taking shellfish would be

particularly incongruous because the sovereign interests

* In Repsis, the court held that Wyoming’s admission into the

Union on an equal footing extinguished the tribe’s hunting right

because it was a “temporary and precanous” right, valid only while

the land was not occupied. 73 F.3d at 991. The tribes’ right to take

shellfish in this case is certainly as precanious. It existed only until

the beds were “staked or cultivated.” Indeed, the tribes themselves

admit that their claimed right to take shellfish is precarious and

defeasible because they concede that shellfish beds may be

destroyed for tideland filling and development. App. at B21-22.

re

in tidelands protected by the “strong presumption” are

the state’s control of navigation and fishing. Shively, 152

U.S. at 49 (“The title to the shore and lands under tide

water .. . ‘1s regarded as incidental to the sovereignty of

the state--a portion of the royalties belonging thereto,

and held in trust for the public purposes of navigation

=m fishery.’ ”) (quoting Hardin v. Jordan, 140 US.

381 (1891)). Cf Martin v. Waddell, 41 U.S. (16

a 367, 411 (1842) (noting that grants of interest in an

oyster fishery in land under navigable water are

“construed strictly” and will not be found without “clear

and especial words” granting that sovereign interest).

The Ninth Circuit’s decision that the equal

footing doctrine applies only to claims of fee title or full

beneficial ownership is also in direct conflict with

Winans, 198 U.S. 371. In Winans, this Court applied the

equal footing doctrine to the question whether the

fishing clause in the Yakama Treaty “created” easements

in the shorelands of the Columbia River at the traditional

sites where Indians had stood to catch fish in the river.

ld. at 381-83. No claim to fee title or full beneficial

ownership was at issue in Winans, only claimed

easements, yet this Court followed Shively and applied

the equal footing doctrine.

Similarly, the Ninth Circuit’s refusal to apply the

equal footing doctrine, because the tribes’ fishing nghts

were “reserved,” directly conflicts with this Court’s prior

decisions. The easements claimed by the tribes can exist

in one of only two ways. They were either granted (or in

Winans’ words “created”) to the tribes or they were

reserved to the United States for the tribes’ beneficial

use.° Either way, this Court’s cases squarely require

application of the equal footing doctrine.

In Winans, the very case identifying the tribes’

fishing right as a “reserved” right, this Court applied the

equal footing doctrine to determine whether the treaty

“created” a shoreland easement and an access easement

to that shoreland site. 198 U.S. at 381-83. In Utah y

United States, 482 U.S. 193 (1987), this Court applied

an even more stringent equal footing test to a claim that

the United States had reserved to itself land under a

navigable lake in the Utah territory. Likewise, in

Montana this Court applied the equal footing doctrine to

the tribe’s claimed reserved interest in land under

navigable waters. 450 U.S. at 550-57. Winans. Utah and

Montana flatly contradict the Ninth Circuit’s decision

that it need not apply the equal footing doctrine because

the tribes claim “reserved” easements.

Applying the equal footing doctrine to the

meaning of the Proviso was the task for the Ninth Circuit

in this case. In conflict with other circuits and this Court.

the Ninth Circuit refused to perform this analysis. If the

Ninth Circuit had applied the equal footing doctrine in

this case, as the Tenth Circuit did in Repsis, the result

undoubtedly would have been different. The very

language of the Proviso, barring the tribes from taking

> If the United States neither granted the easements to the tribes

nor reserved them to itself for the tribes’ use, then the tribes claim

no more than a “reserved” aboriginal right. Any such reserved right,

however, has been lost by nonuse. Williams v. City of Chicago, 242

U.S. 434, 437-38 (1917) (holding that treaty’s reserved aboriginal

right of occupancy had been lost through nonuse).

-26-

shellfish from “any beds staked or cultivated by

citizens,” demonstrates that there is no intention, much

less an intention in “clear and especial words,” to grant

the tribes permanent easements in all of Puget Sound’s

tidelands and bedlands for purposes of taking shellfish.®

ite The Ninth Circuit Ignored This Court’s

Equal Footing Cases When It Broadly

Construed the Scope of the Easements.

Even if one disregards the Proviso’s plain

meaning and assumes that the tribes may take shellfish

from the Growers’ staked or cultivated beds, the Ninth

Circuit’s holding still is in direct conflict with this

Court’s opinions. The Ninth Circuit in this case broadly

construed the tribes’ easements as extending to every

inch of private and public property along 2227 miles of

Puget Sound’s shoreline. The treaties in this case,

however, limit the nght of taking fish to “all usual and

accustomed grounds and stations.” In Seufert, 249 U.S.

at 199, which addressed the same treaty as Winans, this

Court held that this “usual and accustomed” language

meant that the tribes’ easement (“servitude’”’)

6 Winans concluded that the Yakama Treaty was “plain”

enough to overcome the strong presumption against creating

shoreland easements at specific sites on the Columbia River. But the

Yakama Treaty does not contain a Shellfish Proviso. App. at B37-

38 (noting that Yakama Treaty does not contain the Proviso

because the tnbe is from inland Washington, far from Puget

Sound). Winans does not answer the distinct question of whether

these treaties, which do contain the Shellfish Proviso explicitly

barring Indian harvest from “any beds staked or cultivated,” still

allow a conclusion that the United States intended a “very plain”

grant of easements to millions of acres of Puget Sound.

ry.

Is One existing only where there was an

habitual and customary use of the

premises, which must have been so open

and notorious during a_ considerable

portion of each year that any person, not

negligently or wilfully blind to the

conditions of the property he was

purchasing, must have known of them.

Seufert requires that the tribes bear the burden of

proving their claimed easements at specific locations

from which the Indians “habitual[ly] and customar[ily]”

took shellfish. Jd. Without citation to any authority, and

directly conflicting with Seufert, the Ninth Circuit

relieved the tribes of their burden because “it would be

extremely burdensome and perhaps impossible for the

Tnbes to prove their usual and accustomed grounds on a

species-specific basis.” App. at A20.7

The Ninth Circuit’s failure to hold the tribes to their

Seufert burden more broadly conflicts with the basic

principle of the equal footing doctrine that the scope of

easements claimed in derogation of a future state’s title

’ The Ninth Circuit imposed the 2227-mile easement because it

said that the usual and accustomed areas for taking immobile

shellfish were coextensive with the broad areas of Puget Sound

earlier decided to be the usual and accustomed areas {or taking free

swimming salmon. App. at A20. In his concurrence, Judge Beezer

deemed this reasoning “perplexing,” but thought it mandated by the

law of the case. App. at A43. As the State of Washington’s Petition

explains, this conclusion was incorrect. In fact, imposing the

2227-mile easement places the Ninth Circuit’s decision squarely in

conflict with Winans and Seufert.

-28-

to land under navigable waters must be construed as

narrowly as_ possible. Shively, 152 US. at 10;

Massachusetts, 271 U.S. at 89. Thus, even if the United

States granted easements to the tnbes, the equal footing

doctrine still must be applied so that the scope of any

such easements are narrowly construed. /d. The way to

construe the easements narrowly is to require the tribes

to meet their burden of showing the specific locations

that were their usual and accustomed locations for taking

shellfish. Seufert, 249 U.S. at 199.

Ul. LACHES SHOULD BAR THE CLAIMS.

The tribes’ claimed nght to enter upon private

tidelands and to take shellfish from the Growers’ farms

lay fallow for 135 years, only to be summoned up to

defeat generations of labor and investment. In light of

the long delay, during which time expectations regarding

the exclusive possession of property became ever more

settled, the tribes’ claims against the Growers should be

barred by the doctrine of laches. The Ninth Circuit

rejected the Growers’ laches argument because this

Court has not yet accepted laches as a defense to an

Indian treaty claim, but noted that the “equities do weigh

heavily in favor of the Growers.” App. at A28.

This Court has left as an open question whether

Indian rights in land may be defeated under the equitable

doctrine of laches. Oneida, 470 U.S. at 244 (refusing to

address laches but stating in dictum that “it is

questionable whether laches properly could be applied”

to defeat Indian title). Four members of this Court

argued in dissent in Oneida that laches should be

available to bar a claimed tribal nght in land if interests

and investments in property are settled. Oneida, 470

9.

U.S. at 255 (Stevens, J., joined by Rehnquist, J.

dissenting). This Court should resolve this important

question, which affects not only the Growers and other

petitioners, but millions of other people in the Ninth

Circuit and other circuits who are potentially subject to

having settled property interests upset by assertion of

long dormant treaty rights in their lands.

The Growers’ reasonable reliance on the right to

exclude all others from their farms is not disputed. Not

once in the 135 years since the treaties were ratified did

any Indian--or anyone else--claim the nght to enter the

Growers’ cultivated shellfish farms and take the

Growers’ crops. For one of the Growers, title dates back

to the 1860s, with not a word of protest from the

Indians, from the state or from the United States until

this action was filed in 1989. App. at C3 (the “Growers

and Private Property Owners are, effectively, innocent

purchasers who had no notice of the Tribes’ Treaty

fishing right when they acquired their property”).

It is undisputed that all the Growers invested their

money, their labor, and their lives in their farms in

reasonable reliance on their ability to exclude all others

from entering their farms and taking their crops. The

Growers’ investment and labor in their farms, sometimes

tor generations, are now imperiled by the Ninth Circuit’s

judgment, and the prejudice to them is patent if the tribes

are allowed to enter their farms and take a portion of

their crops. That these facts would bar any normal claim

under the doctrine of laches is not contested.

These facts call for application of laches to the long

ignored claim of these tribes. As noted by Justice

Stevens’ dissent, the failure to apply laches under these

-30-

circumstances “is an unprecedented departure from the

wisdom of the common law.” Oneida, 470 U.S. at 256.

The: best interests of society require that

causes of action should not be deferred an

unreasonable time. This' remark is

peculiarly applicable to land titles. Nothing

so much retards the growth and prosperity

of a country as insecurity in titles to real

estate. Labour is paralysed where the

enjoyment of its fruits 1s uncertain; and

litigation without limit produces ruimous

consequences to individuals.

Lewis v. Marshall, 30 U.S. (5 Pet.) 470, 477-78 (1831).

CONCLUSION

The writ should issue.

Respectfully submitted,

Michael Himes

Counsel of Record

Albert Gidani, Jr.

PERKINS COIE Lip

1201 Third Avenue

Seattle, WA 98101-3099

Attorneys for Petitioners

Dated: December 23, 1998.