the court deanna maynard for the nation i'd like to reserve three minutes of time for rebuttal all right oh watch the clock i'll try to help you as well thank you very much your honor the requesting parties failed in their burden they had to show there was no evidence before judge bolt from which he could have concluded that the loamy fish in the disputed waters had issued but there was ample evidence before judge a bolt from which he could have so concluded south under the rationale this court applied to conclude that admiralty in limit is within the lebanese una that logic applies equally or greater here the district court should be reversed and judgement should be entered in favor of the lummy i'd like to start by talking about the evidence that judge bull cited in finding a fact forty six when he concluded that the law means una included the marine areas of northern puget sound from the fraser river south to the present environs of seattle first he relied on dr lane's report he cited the portions of her report that are on e r one twenty seven to one thirty one of this record where she first lays out the home territory  line and she says in addition in addition to those home territories the question i'm quoting now from e r one thirty mummy fishermen were accustomed at least in historic times and probably earlier to visit fisheries as distant as the fraser river in the north and puget sound in the south and if one looks at the map that was before judge usa sixty two it's on page to reproduce on page thirteen of our brief one can see that if she's first described the waters of the san juan islands including her own rezai as straight as the home territory and then judge lane goes on to say in addition they included waters to the south in puget sound that necessarily includes these waters that alone is some evidence before judge bolt obviously heard the last argument where mr s s and left off was exactly this point of travel alone is not sufficient so my question here is travelling from the respective areas to puget sound and this how do we know that it's not just travel as opposed to an occasional drawing as opposed to actual  well so two points your honor this court on the travel point this court has on multiple occasions held that while incidental travel is not enough more frequent travel is enough this court so held in upper  this court's conclusion that admiralty inlet was within the law me una as well so it while the incidental trolling and travel rule is a rule this court has identified it has also held that more frequent travel is sufficient but the evidence that i'm pointing to hear your honor i think is not just of travel it is a fishing so and dr langer goes on to say on your one thirty one let me used fisheries in bays from the fraser river south to the present environs of seattle so what we're trying to conclude here is what judge bull meant when he so judge built a finding of fact forty six describes the  a custom fishing grounds he finds us fact that it includes the marine areas of northern puget sound from the fraser river in the north south to the present environs of seattle and what would he have understood that to me and would he have understood that to be a continuous you in a way and i have two points that i think show that in addition to to judge two sorry to dr lane's report the first is in one thousand nine hundred affidavit that the district court did not address where it is reprinted e r one eighty one and eighty two where the affiant says he's lived among the let me for many years and they quote fish at all points in the lower sound and wherever the run a fish was greatest so that's more than evidence judge mccune of travel that's evidence of fish and then the map that was before me i just one actual point i think on that particular affidavit we received information after the treaty was signed you're asking us to interpret in and around the treaty that's right your honor and i think there's good reason to do that so first again one judge both cites that as support for his finding of fact forty six he cites that particular affidavit it's the affidavit w that is in finding that he cites and finding of fact forty six so he relies on it and the question again under this court's precedent is whether there was evidence before judge bolt from which he could have inferred fishing at or before treaty times and certainly from a traitor who says shortly after treaty times to be sure but that he's lived among the lummy for many years and known them to fish throughout this area a judge could from that evidence and make the finding that the lummy did so at treaty times the question again before this court is whether there's some evidence before judge bolt to support the conclusion that these waters  said in addition they had fisheries to the south this is the south so there is evidence of fishing on the point about the map and where judge bull would have understood the strait of juan de fuca to and because this is a big point the other side makes the map again is reprinted on page thirteen of our brief and it's easy to sixty when one looks at that map the strait of juan de fuca is way to the west the label for wan is way to the west the contemporary understanding at a time judge ruled of what a straight this is a narrow passageway connecting to larger bodies of water and the only way this can be a narrow passageway connecting to larger bodies of water is if the strait ends somewhere to the west of the disputed territory here where does it  well and where east of forty and chillers somewhere to the so if you're on or would if you have r r blue brief on page thirty nine are opening brief it shows a reproduction of e r two sixty in total but it marks an arrow so there's an arrow marking the strait of juan de fuca and there's an arrow marking trial island which is a very small island the way this map is and that's where the beginning of the line the line that's at issue now runs from trial in which is the south southernmost point of the southernmost part of harris strait which is harris  again undisputed mummy territory so dance go back your question judge we can't you're saying you can't can't say for example southern lopez down to admiralty and let because it's too wide it's not there oh well i mean  finding in fact forty six and it would show back to your original point judge mccune which is where does the strait of juan de fuca end at some point it doesn't exactly matter precisely words for this case because it ends well to the west on this map is shown well to the west of the line if you go did frequently travel they would have frequently travel between these two points barbara lane testified to her report states that these indians and this is not this is in on e r one thirty so it's description so i grant you it says these indians includes a broader group of indians but it clearly includes the army and it's within this portion cited for finding a fact forty six barber lane says that these indians travelled widely and frequently throughout the waters of the sound and straits is common to all my numerous early observers and so the rationale that this court used to conclude that the waters of the inlet which would be a necessary passage that as as they let me fish from fraser river in the north to the environs of seattle in the south that that would have been a continuous area that usa sixty two shows that judge what would have understood these waters to islands and in addition to the south that is ample evidence for this court to conclude that these waters are within the  before just ask another question maybe this is obvious to you all we're where are the waters west of whidbey island in and or does that matter in my view your honor the question before that it doesn't really matter the answer to that question because in the some ways it also doesn't matter like where does the strait of juan de fuca end the question before this court is the are the dispute that's been placed at issue are the waters i was just describing from judgment for the army and before i sit down just so that i don't know catch him unfairly on rebuttal you know we do have an alternative argument we think this is the way to write way to resolve this case and this would put him into it and hold this water's were then but if they weren't with then then we or thank you thank you so we now have forty angelus and the splitting is that correct yes your honor may it please the jamestown tribe to answer a question posed it absolutely doesn't matter because we've been here twice on the question of what is the law means western boundary in the broad description from the know in northern puget sound from fraser river to the present environs of seattle and in order to answer this question you have been told repeatedly that the most direct route is  one hundred twenty three mile detour through the strait of juan de fuca where salmon were most easily taken according to the affidavit is where let me fish never have i heard it said that salmon are most easily taken in the open waters of the strait of  in addition one thing that should be clear under case or forty eight which i stood at which i set up there is one is actually not coming under the record from admiralty inlet they're coming from the present environs of seattle which is on the east side of would be island edmonds and that was found in the muckleshoot case of the president of seattle and they're going north to la me above the me which is the fraser river which is also on the east side and all of lebanese references in the report are to the bays on the mainland dr lane said these speared fish on the bays of the mainland and as this court can recall in the upper skagit versus acquirements case at five ninety f three d ten twenty this is this the upper skagit case in the reverse in that case  was arguing they were coming up the eastern passage well let me seems to forget to tell the court there's two ways to skin this fish there's two ways up to the san juan islands from the press from the present environs of seattle one way is the hundred twenty three mile detour that they've proposed which gets them three additional hundred three ten square miles of the strait of juan de fuca and the other more likely path is through waters aptly named as saratoga passage and deception pass this is the inside passage that sequoyah mission was trying to seek from the snow homesh river areas that they claimed as their una and the court said no the court said well you know like i said there was a prior panel that went with this more likely than not and just added the areas because they were in between and then the panel reversed on rehearing and said now wait a minute we have to look at the record under muckleshoot one two and three as a side note i think i know why the panel was having trouble  me one decision as your honor may recall was issued on the same day as two of the muckleshoot decisions so the whole law of the case on on on how to look at the record in front of judge bolt and how it had not fully been developed and the record the court was looking at in law me was not issued in accordance with michael said one two and three judges coil nine hundred ninety decision was based on trying to get to the intent of the court but it didn't apply muckleshoot one two and three because they didn't exist yet so now we fast forward in his mar position that the only way that this case is consistent with upper skagit and the tulalip case at seven ninety four f three deal levon twenty nine is that we have to look at the record and through saratoga pass and then through deception pass yes and let me does claim that area is there una and him but also if there admiralty inlet is and we're bound using but to go this way and this way you're suggesting weak we can't really count going through and loyalty and when i'm saying that multi inlet isn't one of the geographic markers and finding of fact forty six islands and if we move the strait of juan de fuca seventeen miles to the east a request by law many it creates an ridiculous set of circumstances in terms of the case law so in terms of the upper scheduled decision this is exactly the upper skagit decision you're looking at the record and you're saying i have no references and in my in our case we have a specific intent to exclude in the record salami wants to traipse out this map that was cited in finding of fact forty six reef net it says reef net grounds and this is not a reef ground in the middle of the strait of juan de fuca this is the key you will note that on this map we'd be island is on the map right smack in the middle dr lane the expert in this sorry there's no reef net site there why is it then that somehow on the eastern side of would be that that is because very well we're not answering the question because it seems to me that doesn't answer either question so that's my well yes so the concern is is that what how is it that you're supposed to prove that someone didn't fish there and i posit the question is we look at the record under muckleshoot one two and three and we see if dr lane indicated an intent to include that area in there una and all she has is a broad general description which this court has held twice was ambiguous now let me wants to use that ambiguous description as the piece of evidence that includes this area and we say this court has no evidence to support that conclusion but in addition this court has held that specific geographic anchors are important and in the swinomish case which is not final decision number one but was nine hundred seventy five as opposed to one nine hundred seventy four where the court found you in a for the swinomish tribe up to and including would be so we have dr we have judgeable knowing how to use would be island when he intended to include it specifically calling it out we have lummy at l s e are twenty admitting in the lower court that west of would be island was the state here if your time is up and i have one last question so are you saying that in your view the waters east of would be island are established because that would be the route one would get from seattle to the north if you're going to follow the argument of making a continuous route the shortest possible route sixty eight miles brings one twenty i would say that it's much more likely that they took the inside passage  requires the columns to show that there is no evidence before judge bolt a regular treaty time to fishing by lummy in the waters west of would be island or frequent travel in route to fishing grounds i don't want to be redundant  i'll probably have to bring up a couple of points to put in perspective what i'm going to say and i don't have a lot of time i won't have a lot of time later so i just want to know why don't you get to what your point is ok to be different from sure we've read all the br ok well i think one point about the court's two decisions since two thousand where in both cases this court has affirmed judge martinez's application of the two step process in the more recent of the two the  lane there's a reference in this court's decision that there was also general evidence that also of supported affirmative judge martinez but i think it's very clear judge martinez did not rely on that general evidence and that this court's decision in seven ninety four fed third does not stand for the proposition general evidence alone is enough to sustain a finding of an intent by judge martin or judge bolt to include an area in a  una the eight forty one fed second case of this court back in one nine hundred eighty eight which relies on for the lenient standard of proof and it is the lenient standard of proof but i don't think it's quite as lenient islami suggests i think it's important to note that in that case this court was affirming was reviewing judge craig's initial determination after trial of  the un a finding and applying a clearly erroneous standard to judge craig's finding of historical fact judge craig made an inference from some specific historical testimony from dr lane including at one point an inference that she was herself was unwilling to make when she provided her testimony and this court said that's not clearly erroneous to have done so i think there's a difference when we're dealing with a case now where we're looking at what did judge bolt intend when he made his decision there's no indication in our record that judge bolt made the same kind of inference that judge craig did or that  barbour lane made any similar inference or provided any specific evidence of let me fishing or travel for fishing in the waters west of whidbey island so i would like to comment a little bit on the lummy evidence there four to judge boat to show one reef that site it wasn't offered to show the location of water bodies are pointed out to judge but for this this purpose although that's what let me argues that it shows now regarding the  difference between the strait of juan de fuca and northern puget sound they have to add colored arrows that seven different points in their briefs to try to make that point to this court that no one made to judge bo hundred seventy four even if this were some evidence that this is northern puget sound rather than the strait of juan de fuca it's hard to understand how that helps under the two step process we need evidence of fishing or travel all this shows is that perhaps it's northern puget sound and we wouldn't agree that it shows that but that sort of cuts against me because it really supports the idea that the waters west whidbey island are part of the waters that judge bult has specifically determined i'll be it without recognizing them as as una turning to the eight hundred ninety eight affidavit which wasn't discussed by judge martinez it's not evidence of fishing in the waters west of would be island even at the time that it was given forty years after the treaty it includes statements that let me indians fished at all points in the lower sound including point roberts all of the references to location and that affidavit are areas to the north of these waters which are part of the law me home and judge mckeown you were interested in asked a follow up question about this declaration and it's important to note lower sound in this declaration is used in the watershed sense not in the sense of cardinal directions which is consistent with judge bolts terminology in decision one where he describes walks and highland tribes una which is in the southern sound near limpia as being within upper puget sound we've got that discussion in our brief dr lane had a report on the let me at usa thirty all the references in this report again are to let me fishing in north of the waters west of would be island in the in their home territory with the exception of the reference to the vicinity of edmund's or which is also derived from dr lane's report the reference that he are one third are you know talking about the waters west of northern correct that's the area in dispute and in fact on the map i have it says area twenty three b well there that that map let me talk about that for a minute there's various twenty three b twenty three seven and six this is this map that ms rasmussen passed out is  really offered not to comment on the boat record per se the cross hatching is simply the area it we wanted to identify the area that's in dispute you know what you're talking about yeah i think we're on the same page  ok well i've just i've run out of time here so i reckon i'm done thank you very much expressly rejected that when it concluded admiralty in that was with within the law mes una there was similarly no reference to admiralty inlet as a separate body of water in decision one just as there is no separate reference in decision one to the waters west of would be island that's not the question what the question is what did judge bolt mean when he said that the law means una and finding in fact forty seven includes the broad area included the marine areas of northern discontinuous una which is what they want you to to hold here these waters could just as easily be called the waters south of the san juan islands and there is a marker or a geographic marker in the finds in fact forty five where judge boat finds that the waters of the san juan islands are within the lebanese home territory and then in fife finding a fact forty six he goes on to say in addition there are these in addition there are these these waters are within that any decision it is the direct route between haro strait and the end the mouth of admiralty inlet which is already been held to be within the army's una is a short distance this is a very small area that we're the case of the lower versus the lummy is submitted and i will say this was true in the previous case as well as here i think the arguments have been excellent and the briefing has been very excellent on all sides in these