order of march twenty eighth one thousand nine hundred seventy five judge relied upon this map extensively during two of the three days of this proceeding the map shows four sub areas and i'd like the panel to focus your attention on area three area three includes what are the contested waters here i know you've all studied the district court opinion fully and might recall the judge martinez refers to area three of this map several times and he reached the conclusion his opinion that there was nothing in the record of the one nine hundred seventy five judge both proceedings indicating the judge both intended the waters there an area three to be part of what he described as the marine waters of the the marine usually custom fishing areas the  demonstrate the judge bolton meant something intended something other than what he actually said the burden is on the upper skagit tribe to demonstrate there's nothing in the record of the one nine hundred seventy five proceedings to support the proposition the judge both could have intended to include the contested waters here in what he described as the marine waters of puget sound now to the errors of the district court your honor please refer to the map again and again area three there's a body of water the divides let me island from the mainland to the north known as hale passage here passage is important judge made a finding it is april eighteenth orders specifically related to hale passage and it demonstrates that he intended to disturb that judge endorsement of the primary and secondary rights agreement among these three tribes proves he understood that help passage was a qualm issue one day here's the important point and why there is no primary and secondary fishing right relationship between two tribes and less each of them have the predicate underlying rights to begin with to a shared area you can't have a tribe that's first in line and one that second and judge bolt is talking about an agreement a private agreement among our between tribes correctly and as we go on in that passage to mention these tribes he does go on in that passage measured there was a fourth tribe mentioned that would not enter into a voluntary agreement or not work things out in advance of the hearing and that was with respect to the swinomish try and judge bold then because they did not work out the primary and secondary relationship ruled and finding a fa important under the muckleshoot analysis and it's it's important as a piece a piece of evidence but my question is whether if this is the primary piece of  or can this evidence alone establish a una for your tribe you are we believe that the muckleshoot analysis has us looking into the intent of judge bold what did he intend and if we understand that the hail passage agreement and his indorsement of it necessarily included a predicate that there was you one day there he can't endorse a primary and secondary relationship without his first understanding and intention that there be a fishing area that shared between the two tribes to begin with so under the muckleshoot test we're not trying to relive it gave the evidence that was offered in front of judge old we're not necessarily having to go behind the order that's that would be as if we're trying to establish you in a in the first instance under the muckleshoot test and a case here where forty years later we're trying to divine the intent of the judge told we must look at the entirety of the record so just so i understand your point you're saying that you couldn't have made this finding without a predicate of the broader human and that's absolutely right you're understand your point thank you explicit george bolted in as the finding is written to be fair your honor i believe that it's implicit but subsequently this court has found it and characterized it as explicit and i would refer you to we didn't court goes on to reference as an example the hale passage finding i'm talking about now so that would be some good authority where i think this court has subsequently referred to the hill passage finding as an explicit indicate that i believe that a fair reading of finding a fact seven and you asked if it was explicit or implicit about his finding if you won a there i believe it's implicit implicit at the time made explicit over time that's correct your honor thank you your honor the next piece of the record evidence that i think the district court we think the district court got badly wrong relates to testimony that was offered by dr barbara lane on april ninth and i can still back oh yes i'm just trying to look at the briefs here and you didn't case is that right no i indicated that we had not but the question that well i understand but it almost seems like that's fundamental to your argument now as to whether the hail passage statement could qualify for the u s so let me suggest this because i didn't see it cited before is that you provide the court with the twenty a j letter when on that and the other side would have an opportunity to provide any testimony badly at the time of the hearing on april ninth the state's attorney was trying to get barbara lane to testify to the notion that it would be usual for tribes to exclude local tribes to exclude tribes visiting from other areas from fishing in bodies of water or areas dr lane was resisting that sort of testimony it was not her expert opinion that that was the custom so one step through that testimony the dischord made much of under cross examination by the state dr lane testified by way of example that in this is on the quote it would not be customary for sequoia miche to travel all the way into bellingham bay bellingham bay or nearby waters she was speaking of the custom of how proximate to local tribal villages or homes other tribes are outside of the immediate area would or would not go to fish now just prior to these comments dr lane was struggling to get the state council to understand and she put it this way she tried to make the point by saying and i'm quote if you want our neighbors and we own property along a common thoroughfare and there are flowers growing along it you don't go pick the flowers right in front of another's home or property and that's it e r eight fifteen so she's trying to make the point that when there's a common fishing area the custom of the time was not to go access the fish or the resources are right in front of homes and villages and the contested waters an issue here the areas the waters an area three here are vast and open marine areas commonly used by many tribes the last critical when you look through the report for any graphic reference other than this one reference about not going all the way into bellingham bay the only other geographic references appear to be pretty far south which is down here you know more toward seattle in the match or in this home as rivers is there any other geographic reference we should look to north from their homeland to the fraser river in canada which is over one hundred nautical miles she testified in her report that sequoyah much were unique among the puget sound tribes in the vastness of their marine travel because they lack specific resources and rivers at their homeland they had to travel broadly they were known as wide travellers in the hearing of f or alliance and the reason that there is so little testimony about this area it has to do with the unique emergency nature of the proceeding the judge both held about the herring fishery sea judge made a prime official determination on april ninth and he declared it from the bench and we briefed this that this map constituted that the un a of the tribe for the herring  the state insisted on an opportunity to rebut some of the areas and the state limited its rebuttal to areas one and two so in this emergency expedited hearing the judge told describes the state goes on looking eliciting testimony about areas one and two there has been no challenge to area three entering that time one other question i know you want to save some time but then i'm looking at this other reference and tulalip tribes where they talk about squamish going from bash on up to raise your river but traveling west of would be island which would seem not to be at all in this well i guess we're kind of disputed area correct so what are we supposed to make  i think that is a fantastic case to look to as guidance here because in that case and labor versus aquash although there was no specific evidence naming waters like admiralty bay cutlass bay useless bay uni bay there was no evidence suggested there for those bays and coves along would be island this court found that it was reasonable conclude that because of the northward travelled sequoia mr the fraser river they would have travelled along that path and dr lane had previously provided general evidence that pathing west it would be island yes west and there is also waters found on the east as well but as i was mentioning about hale passage dr lane testified that haile passage was a customary travel route for tribes moving from the south to the north to fraser river one thank you rather like to reserve the balance of my time will be speaking for three minutes or so we have reserved three minutes from his rasmussen to primarily address the issue of travel in this case there are three main reasons why the decision below should be affirmed one in  to expand their record based upon reason relating to their contemporary efforts and adjacency this simply is not what is at issue before this court it is not what the lower court was to standard is not relating to contemporary evidence of their activities the standard is not what a map might relate to the standard is whether or not there is any evidence in the record demonstrating embarrassed she said was area straight area which was it is or is adjacent to the disputed waters so there's two geographic references i'm interested in your comment your honor i would like to be clear that there is no there the only tribe that she places inhales passage is lummy at or before treaty times this notion that because there was an agreement amongst three tribes in one thousand nine hundred seventy five that that has any import as to what occurred in eight hundred fifty five is misplaced it's akin to what they've done by submitting the regulations they don't have the facts so they rely upon reason they submit regulations asserting that in one thousand nine hundred seventy five they had a specific intent to fish and that because they had an intention to fish that's somehow gives them a right to fish but even in their own pleadings in zero five four or five three i'm sorry they have stated that regulations cannot be relied upon to establish you winnings therefore the reliance on contemporary evidence is simply mis place if you look again that  state we can go more than just proving that there is no evidence in the record we can establish that the record excludes him from the area her testimony pertaining to bellingham day is significant without being able to cross a billingham day counsel of record has stated that they would not be able to have access to disputed areas here when dr barbara ling specifically states that they did not fish in bellingham being we have proved without a question but that they were not there at or before treaty times it's also an important to keep in mind why there was no discussion about area three at the time that dr barbara ling was being questioned by mr stay the testimony related to areas one and two a direct testimony focus solely on areas one and two when to state them gets to cross their cross is limited to what the direct testimony was they had no obligation to proffer evidence pertaining to area three so the state questions about areas one and two again it was the qualms his burden to establish where they wore an eight hundred fifty five not the state's burden to establish that they weren't there and it certainly isn't up or s spurn to establish that they weren't there it's up or skagit its burden to establish what's in the record and when you look at the record it's clear they were not in the disputed area at or before three times i would also like to address this notion that because upper skagit did not object during the hearing that we somehow acquiesced to the finding that they're trying to assert applies here upper skagit one thousand nine hundred seventy five you will note in the record their failure to object which counsel places great significance on really is without merit because we didn't have a basis to object so let's go back and see where we are and what is the evidence  record the specific evidence which is what you are required and limited to look at according to the muckleshoot trilogy the evidence in the record is silent as to suppliers in the disputed area so what this council attempt to do they can attempt to argue a j cincy and contemporary efforts are equate to what they did in eight hundred fifty five that simply is not the case here we have a very straightforward proceeding we're fortunate that we have the case law that we have here and the law of this case it's important to adhere to that opening up with records to allow  by lower level judges based on information that do not relate to what the actual standard is is a very dangerous proposition as this panel is well aware this case has been going on for a very long time and there are a number of issues and efforts by tribes to expand their you winnings however the muckleshoot standard is adequately phrased to limit those are to be limited by what the record submitted by judge will was as it relates to have a activities of those tribes at or before treaty times the district court's decision below should be affirmed this has been described by sue kwame says a small area of little significance to to many people i guess is where i would put it the reality couldn't be farther from the truth this area represents over fifty percent of the upper skagit una it assists over thirty family members it allows them to exercise perhaps one of the most significant things that tribal members can exercise that being in their treaty rights this notion that sequoyah mix should be able to come in to an area for which they have not finished or establish that they fished for over four years and i would call the court's attention to those regulations and to the catch reports which they rely upon as a relates to that because those catch reports and don't document forty years of effort in the disputed area what they document are landings in a larger area twenty one b twenty one b in compass is the disputed area but it is not limited to disputed area so those lending to do not established it's a quality has been fishing here for forty years also if you look at that information closely you'll see that those are duplicative even if they had been fishing for the past forty years in the disputed area that again is not what is it is you before this court what much easier in this proceeding the district court found in zero five three that there is no evidence in the record before judge gold that this requirement fish or traveled in the waters on the eastern side on particularly saratoga passage or skagit being i would also include that the same reasoning applies to disputed areas here let's look at what the actual language of judge will was when he rinder to decision from the bench at the conclusion of the hearing judge gold specifically amount announces finding that the sequoias had made a prime of fac judge both states are primary facia showing has been made that travel and fishing of the sequoia strike through the north sound areas that areas one and two as designated by the say nothing in regards to area three and yet this map was before him he could have referenced area three but there was nothing in the record to allow him to do so counsel did not present any evidence that they were there all of the questioning she is very accurate and heard the picture and as to where they wore on the western side not so much in this area because they weren't there when dr barbara lynn wanted to be specific and the information was there she would be here there was no information to rely upon and so she was careful in her analysis and did not assert that they were in the disputed area because there was no information to place and there marine waters these are bays and inlets that belong to the upper scout to tribe to which dr scott to try to needs to survive this comes back to a critical rule in this case that everybody seems to have forgotten transit alone by itself in throw fares is not una decision number one provides a three eighty four f stop at three fifty three this is finding of fact fourteen that was affirmed by this court and the supreme court in passenger fishing vessel and all of the sub proceeding to come after must build upon those rules set forth in the findings of fact by judge boat so you'll hear these arguments about it's a likely travel route or it can be reasonably  then it changed its mind upon panel rehearing and the parties argued now wait a minute under muckleshoot one two and three you have to look at the record in front of judge but let's remember that dr lane's reports were not a list of places where people did not fish they were a list of places where people did fish and when she did not include certain places that lack of inclusion is significant in the case for us so we have succumbed much making the argument the sensibly it's a formula i have any evidence of travel this is on page one of their reply brief plus the general ferries that all tribes travelled means that i get you in a nobody can challenge me but the problem is what they're missing is the critical item that's required by finding a fact fourteen they need evidence that they fished in that particular area so we go to their statement that this case isn't considered consistent with the way look for us as a qualm as at seven ninety four f three d eleven twenty four absolutely not in that case we're talking about the basan inlets off of admiralty in the end yes did not have a specific reference a geographic if anchor point they would put them on those bays and inlets but what did the court to the court the district court started in the ninth circuit build upon it they looked at the evidence from judge dr lane who said sequoyah much travelled to would be island to fish they had an eight hundred forty six reference from achilles to harley that said occupied the west coast would be gallant they didn't get those bays on the basis of the general statement that all tribes travel or the fact that it was somewhere located between the endpoints and be the quote look to specific references pacific pieces of evidence that tied  that location and if we put if we do this in the context of the whole case is a whole you'll see that the commie vs tulip case describes this formula aptly you have to have specific evidence of fishing travel and frequent visits to particular areas you have to have a multi factor to analyse this and in this case just to close your honor i'd like to say that the sequoia must attorney forty years ago recognize this point when he got an objection about the thank you ron are a few points first the nature of the proceeding in the disagreement that we have strong disagreement we have the posing council about what happened on april ninth tenth and eleventh really must be resolved by looking at the hearing transcript and that's why we've submitted it in its entirety it's been mis characterized by opposing counsel the issue about how the states rebutted what the judge had made a prime of the terminations for and why in april tenth the judge only referenced areas one and two as explained well when one reads the transcript in full and urge the court to do so next your honor asked about a specific point and that was reserved straight a few moments ago the district court made reversible error when it strayed from the bolt record itself and developed a new fact it found in fact that's the be a substantial detour for the sequoia much tried to move into waters that would be land word or towards the contested waters from the chain of  adds forty nautical miles to the trip but that the district court could accept so an eight mile detour towards marine which rich waters an area three and towards friendly villages and relations being a substantial detour just the fact that the district court made its own fact finding that it would be a substantial detour to move approximately eight miles into the waters from rosario strait is reversible air thank you the case of upper