# Amicus Curiae Brief — Washington v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1072%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1060 ## Text MOTION FILED ei Nos. 98-1026; 98-1028; 98-1039; & 98-1052 In the Supreme Court of the United States October Term, 1998 : STATE OF WASHINGTON, Petitioners, y UNITED STATES OF AMERICA, et al... Respondents + (Additional parties listed on inside front cover.) ~~ 4 On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit = _ MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF PETITIONERS STATE OF WASHINGTON, 26 TIDELAND AND UPLAND PRIVATE PROPERTY OWNERS, PUGET SOUND SHELLFISH GROWERS, LARRY B. AND SHIRLEE ALEXANDER, AND WILLIAM AND CHARMOND ADKINS ROBIN L. RIVETT JAMES K. MEE Pacific Legal Foundation Counsel of Record 10360 Old Placerville Road Pacific Legal Foundation Suite 100 P.O. Box 235856 Sacramento, California 95827 Honolulu, Hawaii 96823-3514 Telephone: (916) 362-2833 Telephone: (808) 524-0510 Facsimile: (916) 362-2932 Facsimile: (808) 733-3374 Counsel for Amicus Pacific Legal Foundation PUGET SOUND SHELLFISH GROWERS, Petitioners, V UNITED STATES OF AMERICA, et al., Respondents 26 TIDELAND AND UPLAND PRIVATE PROPERTY OWNERS, Petitioners, \ UNITED STATES OF AMERICA, et al., Respondents a > LARRY B. AND SHIRLEE ALEXANDER, et al., and WILLIAM AND CHARMOND ADKINS, er ai., Petitioners. \ UNITED STATES OF AMERICA, e7 ai., Respondents i MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF PETITIONERS STATE OF WASHINGTON, 26 TIDELAND AND UPLAND PRIVATE PROPERTY OWNERS, PUGET SOUND SHELLFISH GROWERS, LARRY B. AND SHIRLEE ALEXANDER, AND WILLIAM AND CHARMOND ADKINS Pursuant to Supreme Court Rule 37, Pacific Legal Foundation (PLF) respectfully moves to file the attached brief amicus curiae.' Consent to file this brief has been granted by counsel for the United States, the Jamestown, Lower Elwah and Port Gamble Bands of S’Klallams, Nisqually, Nooksack, Skokomish, Squaxin Island, Upper Skagit, Sauk-Suiattle, and Stillaguamish Tribes, the Suquamish Tribe, the Makah Tribe. the Quileute Tribe, Puget Sound Shellfish Growers, Petitioners Adkins, 26 Tideland and Upland Private Property Owners (UPOW), Petitioners Alexander, the Yakama Indian Nation, and the State of Washington. The letters of consent received have been lodged with the Cierk of this Court. Requests for consent to file the amicus curiae brief were made to the other parties, but as of the date of filing this brief written responses from them have not been received. IDENTITY AND INTEREST OF AMICUS CURIAE Pacific Legal Foundation has participated in numerous cases before the United States Supreme Court involving the protection of private property rights. PLF attorneys were counsel of record in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 117 S. Ct. 1659 (1997), and PLF participated as Amicus Curiae in Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470 (1987), First English Evangelical ' Pursuant to Supreme Court Rule 37.6, Amicus Curiae affirms that no counsel for any party in this case authored this brief in whole or in part and, furthermore, that no person or entity made a monetary contribution specifically for the preparation or submission of this brief. Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), and Dolan vy. City of Tigard, 512 U.S. 374 (1994), to name but a few. PLF participated as Amicus Curiae in this case both in the proceedings before the district court, as well as on appeal in the Ninth Circuit, and also filed an amicus brief in this Court in connection with another case interpreting the treaties at issue here, State of Washington v. Washington Siate Commercial Passenger Fishing Vessel Association, 443 U.S. 658, modified sub nom., United States v. State of Washington, 444 U.S. 816 (1979). Amicus seeks to augment Petitioners’ arguments by arguing that this Court should decide the important question of whether the claims of the Tribes should be barred by the doctrine of laches, at least as to the right to take shellfish in private tidelands.* Not only do the equities weigh heavily in favor of thousands of private landowners, but previous decisions of this Court on laches do not address the unique circumstances of this case. Moreover, PLF is concerned that the Ninth Circuit’s decision ignores the serious harm its decision will work on innocent property owners. “Both the Puget Sound Shellfish Growers and the Alexander/Adkins Petitioners have raised the issue of the application of laches in their petitions. Puget Sound Shellfish Growers v. United States, No. 98-1028, Petition at 1; Larry B. and Shirlee Alexander and William and Charmond Adkins v. United States, No. 98-1052, Petition at 27. a iil For the foregoing reasons, PLF requests this Court to grant its motion to file the attached amicus curiae brief. DATED: March, 1999. Respectfully submitted, ROBIN L. RIVETT JAMES Kk. MEE Pacific Legal Foundation Counsel of Record 10360 Old Placerville Road Pacific Legal Foundation Suite 100 P.O. Box 235856 Sacramento, California 95827 Honolulu, Hawaii 96823-3514 Telephone: (916) 362-2833 Telephone: (808) 524-0510 Facsimile: (916) 362-2932 Facsimile: (808) 733-3374 Counsel for Amicus Pacific Legal Foundation iV TABLE OF CONTENTS Page TA OE FAT ee ow 5 io 0b 00 cee be cswscces Vi IN Times We ARO US CAIUS 2c ccc ctccesteees I or 8) a) 6 eee oe ey Rr re ee ee I DIATE NORTE Ge BEES NAMI 6 0555 5% Sn ee eee accnaeen 2 A. Summary of Proceedings Below ............. 2 B. History of the Treaties and of the Shellfishing Industry in Washington .......... 4 SUMMARY Gl AIRUMEIFE «iv cccccececsssacatsac 8 Pt ts neg ee See ey ry ee rer re 9 l. THE COURT SHOULD GRANT THE PETITIONS TO DECIDE FOR THE FIRST TIME THE IMPORTANT QUESTION OF WHETHER THE DOCTRINE OF LACHES IS APPLICABLE TO BAR OR LIMIT THE TRIBES’ 135 YEAR DORMANT CLAIM TO TAKE SHELLFISH FROM PRIVATE ep ee er rere rye eer rT ree ee 9 ll. THE COURT SHOULD GRANT THE PETITIONS BECAUSE APPLICATION OF LACHES IS ESPECIALLY PERTINENT WHERE THE TRIBES’ PAST AND PRESENT DECISIONS NOT TO ASSERT THEIR CLAIMS AGAINST THE UNITED STATES NOW WORK UNFAIRLY TO SHIFT LIABILITY FOR SUCH CLAIMS FROM THE UNITED STATES TO INNOCENT PRIVATE LIA PO Soh cece ee ewe eeue awe cancers s 16 Vv TABLE OF CONTENTS—Continued Page Ill. WHETHER LACHES IS AVAILABLE TO BAR LONG-UNASSERTED TRIBAL USUFRUCTUARY RIGHTS IS A QUESTION OF NATION WIDE STM: 659 co EW Si eGo ws ERRNO 19 CAA LAE os noes ova pw E SCC eee ee ee 20 vi TABLE OF AUTHORITIES Page Cases Armstrong v. United States, 364 U.S. 40 (1960) ........ 18 Board of Commissioners of Jackson County v. United States, 308 U.S. 343 (1939) ........... 8-10, 12 Choctaw Nation v. United States, 318 U.S. 423 sa Sinvas ou ec ede o4 ks ER EES OS SECA ee Awe 19 County of Aitkin v. Mille Lacs Band of Chippewa PORE 6 06) does chk se ab eee scene bn eet 2 County of Oneida v. Oneida Indian Nation of New York State, 470 U.S. 226 (1985) ......... 1-2, 11-12, 20 Eisenbach v. Hatfield, 2 Wash. 236, PES 66s ba. 6us bee 69.64 0 Sella tareeee es 6 Ewert v. Bluejacket, 259 U.S. 129 (1922) .......... 10-12 Galliher v. Cadwell, 145 U.S. 368 (1892) ......... 12-13 Lewis v. Marshall,30 U.S. (5 Pet.) 470 (1831) ......... 19 Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419 (1982) ................ 20 Mitchel v. United States, 34 U.S. (9 Pet.) 71 ee i aia aa RAR wir ay The United States Court of Federal Claims shall have jurisdiction of any claims “against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians . . . whenever such claim is one arising under the Constitution, laws or treaties of the United States or Executive orders of the President.” 28 U.S.C. § 1505. 16 damage that will be done to private property rights, this case presents the appropriate situation for this Court to address whether the doctrine of laches should be applied. THE COURT SHOULD GRANT THE PETITIONS BECAUSE APPLICATION OF LACHES IS ESPECIALLY PERTINENT WHERE THE TRIBES’ PAST AND PRESENT DECISIONS NOT TO ASSERT THEIR CLAIMS AGAINST THE UNITED STATES NOW WORK UNFAIRLY TO SHIFT LIABILITY FOR SUCH CLAIMS FROM THE UNITED STATES TO INNOCENT PRIVATE LAND OWNERS This case raises a serious question that should be addressed by this Court. Should laches apply to tribal claims that seek a remedy not against culpable governmental entities, but instead against innocent private property owners? In this case, both the district court and the Ninth Circuit recognized that thousands of private property owners are the innocent parties who will suffer the brunt of the impact of the courts’ decision. The district court specifically found that Shellfish Growers and Private Property Owners are, effectively, innocent purchasers who had no notice of the Tribes’ Treaty fishing right when they acquired their property. Indeed, many of these Growers and Owners purchased their land at or before the turn of the century, and they reasonably believed the land to be free of encumbrances and servitudes. Shellfish Ii, 898 F. Supp. at 1457. The reasonable belief of private property owners was reinforced by the Tribes’ long- standing failure to take any action to assert a claim to shellfish on this land: “Their belief was reinforced by the Tribes’ failure to formally assert the Treaty right until over 100 years after the Stevens Treaties were signed.” /d. The district court found that fault, if any, for creation of the situation lay with the State of Washington and the United States, not with private owners: 17 “Fault for creating this controversy lies squarely with the State of Washington and the United States, for selling the tidelands and not objecting to the sale, respectively.” /d. at 1459. Nevertheless, the United States appears in this action as a Plaintiff, ostensibly acting on behalf of the Tribes. The United States has taken this position despite the fact that it also possesses tidelands suitable for shellfishing.° and despite the fact the district court determined that it, and not private landowners, was in part responsible for any violation of the Tribes’ treaty shellfishing rights. Shellfish I], 898 F. Supp. at 1459. More- over, the United States only supported the Tribes’ claim once it was Clarified that the Tribes were not including federal tidelands.’ Alignment of the United States as a Plaintift, rather than as a Defendant, raises important issues relevant to the laches question. As noted above, the Tribes possessed the right to assert claims for monetary compensation against the United States under the ICCA, as well as under 28 U.S.C. § 1505. The selective decision by the Tribes not to assert claims against the United States obviated the need for the United States to raise an obvious federal defense to the assertion of such claims: that the Tribes’ remedy is not a suit for specific enforcement but, rather, an action for compensation either before the Indian Claims ° PLF notes that if shellfishing claims are barred as to private lands, that does not necessarily mean that all shellfishing rights under the Treaties cease. At the present time, 53% of the tidelands are privately owned and 47% are either present reservation lands or public lands within the control of either the State of Washington or the United States. Exhibit US-181. ’ As noted in the petition of 26 Tideland and Upland Private Property Owners (UPOW), the Tribes initially asserted their claim against all private and public tidelands. Later, after the United States supported the Tribes’ claim, the Tribes clarified that they were not including federal tideland ownership within their clam. UPOW petition at 5-6. 18 Commission under the ICCA or a suit in the Court of Federal Claims under 28 U.S.C. § 1505. Second, the decision by the Tribes not to assert claims against the United States and the United States” corresponding support of the Tribes in this action served to shift the burden to private landowners to “compensate” the Tribes for any wrong- doing of the United States. In other words, not only has the question of federal monetary compensation been avoided, under the lower courts’ decisions, the potential obligation of the United States to make all of its own tidelands available for tribal shellfishing has now been transferred to, and is borne instead by, private landowners as well as the State of Washington. The resulting situation is much akin to the “off-budget” transfers questioned by Justice Scalia in Pennel/ v. City of San Jose, 485 U.S. 1, 22 (1988). In that case, Justice Scalia noted there would be little public support if a measure requiring landlords to subsidize “hardship tenants” were instead structured to provide monetary subsidies to those tenants from public funds. The unfairness is even more evident here. It is impos- sible to conceive that Congress through legislation could dictate the result the United States and the Tribes have achieved indirectly here: requiring private shoreline owners to open their lands and make their shellfish resources available to the Tribes in order to preserve the federal government's own tideland property from those same treaty obligations. Such a direct measure also would pose serious constitutional questions since it would be an obvious example of “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960). The question of whether to apply laches is especially pertinent under these circumstances. Accordingly, the Court should grant the petitions. | 19 Ill WHETHER LACHES IS AVAILABLE TO BAR LONG- UNASSERTED TRIBAL USUFRUCTUARY RIGHTS IS A QUESTION OF NATIONWIDE IMPORTANCE While they vary as to their specific provisions, many Indian treaties provide that the Indians reserve certain hunting and fishing rights in lands ceded to the United States. See, e.g., F. Cohen, HANDBOOK OF FEDERAL INDIAN LAW (1942) at 285 n.171 (listing such treaties entered into between 1789 and 1864). In many cases these rights have not been exercised, especially where such lands were subsequently acquired and utilized by settlers and have been treated as private property for generations. The loss of property rights suffered by innocent Puget Sound property owners as a result of a retroactive treaty interpretation by the courts below creates a precedent that could be used to cause similar suffering by property owners in many other parts of the country as well. The Court has long recognized that claims, especially those affecting property rights, should be asserted within a reasonable time. “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.” Lewis v. Marshall, 30 U.S. (5 Pet.) 470, 472 (1831). While “it is well established that treaties should be construed liberally in favor of the Indians,” Choctaw Nation v. United States, 318 U.S. 423, 431-32 (1943), this should not work to reward those who have slept on their treaty rights. A question of nationwide importance has accordingly been raised by the petitions. The question is whether laches is available to bar long-unasserted tribal usufructuary rights that if upheld will cause innocent landowners to lose significant private property rights. The Court should grant the petitions and address this question. 20 CONCLUSION For the foregoing reasons, this Court should grant the petitions to consider the laches issue left open in Oneida. The need for such consideration here is great. The damage that will be done to private property rights if the Ninth Circuit’s decision is allowed to stand will be ttemendous. Rights which thousands of property owners for generations believed in good faith they possessed will be nullified, including the right to exclude others traditionally held by this Court to be “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Loretto v. Teleprompter Manhattan CATV Corpora- tion, 458 U.S. 419, 433 (1982). DATED: March, 1999. Respectfully submitted, ROBIN L. RIVETT JAMES K. MEE Facific Legal Foundation Counsel of Record 10360 Old Placerville Road, Pacific Legal Foundation Suite 100 P.O. Box 235856 Sacramento, California 95827 Honolulu, Hawaii 96823-3514 Telephone: (916) 362-2833 Telephone: (808) 524-0510 Facsimile: (916) 362-2932 Facsimile: (808) 733-3374 Counsel for Amicus Pacific Legal Foundation --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1072%3A3. Public record. Not legal advice.