# Petition for Writ of Certiorari — Washington v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1060

## Text

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

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1050%3A1. Public record. Not legal advice.