good morning everyone and welcome to the th circuit judge clifton i are happy to welcome judge ray coffee district judge from the southern district of new york who's here to help us out today so let's pleasure to be here i come here mostly for the weather so we have a number of cases submitted on the briefs today the case of the bar is submitted the case of angelou versus peace health it has a prima facia case that it has usual and custom fishing areas in that particular area we brought in or another condition i mean it says not specifically determined by a final decision one certainly that is one term of  determining the location of muckleshoot you and i although his description may have turned out to be ambiguous he did make a specific determination and i focus on the term specific determination because that's the trigger to get t six if there wasn't a specific determination so as i read judge rothstein she's saying look that that door is closed because he's already decided that let me tell you why that door was not closed as to these particular areas your honor because specifically determined has to be read in conjunction with a location it's not simply a free floating was there any specific area specifically determined it was the particular area at issue specifically determined and what judge ruled was that judge bolt's words meant that elliott bay was specifically determined that is all that judge bold established in final decision number one but did she also determine that other parts of puge a judge but was very clear in several respects that when he made decisions about usually custom fishing areas he was not making decisions to exclude that is to affirmatively decide that a particular area was not a usual custom fishing area in fact is fundamental premise in that case was specifically determined meant stablished if i stab list a particular area as a specific i specifically determined it affirmatively there was nothing in that ruling that prevented another area from becoming coming to the court under twenty five dollars a six without claiming areas both within areas nine opinion reads muckleshoot argue that the court cannot make a supplemental finding under paragraph twenty five dollars a six under muckleshoot one to determine their fishing rights in areas beyond dollars eleven cents the district court agrees really a top the court adopted your proposal which was that such a finding was preclude the court misstated our argument your honor and if you look in the record at the responding tribe supplemental excerpts of record number page eighty that is the portion of the brief that the court cited as support for the proposition that we made that argument in fact if you read that particular page you will see deter she determined that only elliott bay was part of michael suits you and she would not give the muckleshoot an opportunity and this is because of the limited nature of an a one proceeding and a one proceeding is an enforcement proceeding that's a very fundamental point and a one proceeding is a proceeding to enforce the original judgment against the party was not acting in conformity with the original judgment in that type of a proceeding in evidence about other findings that the court would want to make under a six for example is not admissible areas and they let me have been in the district court and back up to this court on several occasions under other two hundred and fifty one proceedings but none of them have dealt with that particular location so that particular location has not been pursued by the lobby or by any other tribe question is can a tribe that has treaty rights and wants to pursue those treaty rights under a six as judge bolt contemplated and as judge bolt expected and by the way as ten other tribes have pursued including or in addition  the tribe is pursuing a claim right now in the district court and judge martinez ruled just last march their prior specific determination of usual and constant fishing areas did not bar them from proving other areas and  judge martinez relied specifically on the language in final decision number one the reads as follows although no complete inventory of all of the plaintiff tribes usual custom fishing areas can be compiled today the area is identified in the findings of fact that is the ones to stop pushing final decision ones for each of the player tribes in general describe some of the freshwater systems and marine areas in which the respective tribes fished at the time and goes on to say where in those tribes are entitled to exercise their treaty fishing rights today so judge bolt specifically was expecting that other try the many tribes would come to the court after the original decision to establish additional areas there wasn't time in the original case to examine all of the areas and there were the resources of the tribes and seventy four the tribes were trying to establish that they even had a treaty right to fish and that the state needed to be used trained from from forcing them not to do that and so the tribes were not able and did  figure out which have been determined and which have not and let me just say very clearly that i don't think it can be the case that if you haven't won on a given area you're allowed to keep trying forever for the same area at some point the court can say no that's specifically determined not to be part of your una and so how do we tell which part has been adjudicated already and which part hasn't i agree with your analysis your honor and my answer to that question is if the particular area involved the final decision number one as ours did the question is what was stablished because judge both left open all areas not established if there was a subsequent proceeding that was at issue and here nine hundred and seventy one is the proceeding that the other side says determined are you in a the question would be was there a full and fair opportunity to prove those areas on the merits that's what we want here in that with a twenty five dollars a one percent we didn't have an opportunity to prove those other areas in a full about that still presumes that it had been determined already well again i go back to my  suggesting that it only reached as far at least as elliott bay according to judge rothstein's later interpretation of his language it didn't reach other parts of puget sound or anything else and how do we know that i mean there's no language in final decision one that says at least as far as indeed the whole whole approach to the salt water suggests that this is secondary and implicitly limited so so what tells it the only evidence in the record pertaining to elliott bay and judge bolton the language that i just read to you said i've only found in some areas i found in general in general i found things and things will have to be clarified later but that is not to say that judge bold intended because what we're talking about here is what was his intent in using two thousand five hundred and eighty six what was his intent in entering that finding if judge but we're here today i would advise the court judge but would say of course i intended to let tribes that had not proven up a certain area even if i used ambiguous language so you keep going back to that question that we're past that questions to stablish that if it hasn't been adjudicated the door remains open the question i'm pressing and for which i'm still waiting for an answer is what tells us that this has not already been adjudicated i think you're also going back to the fact the door may be open doesn't answer my question well let me try to answer it this way or i think the answer has to be be in education and that would determined that they were excluded is that correct that would be our position yes or so they would have to change your view there would have to be a twenty five dollars here until after all it would have it and so whenever you had to be heard from all i understand you want to share time so if you can watch the clock very well thank are my name is john ogun i represent the sequoia miss tribe with me at council table is lauren rasmussen who represents the port gamble and jaynestown s'klallam tribes with whom i'll be sharing time as you've observed and officer tribal attorney mr red bell is for the  well may please the court appreciate the panel's questions this morning and rather than going through some of my introductory i think we'll get right into those so judge bolton final decision one relied extensively on expert anthropological reports and one of the key dichotomies that you will find in those reports and in his findings is that he characterized the tribes as upriver peoples or inland fisheries oriented many times as opposed to salt water or marine as you've seen judge bolton finding in fact number seventy six did characterize the muckleshoot tribe as an up river inland fisheries oriented people and did find for them a very vast freshwater riverin a custom fishing area and as you've noted secondarily something in puget sound this court has been asking excellent questions about what was the consequence of the what opposing counsel final decision it was a twenty so paragraph twenty five judge both continuing jurisdiction has a couple of branches twenty five a six and twenty five a one this sub proceeding was a twenty five a one proceeding at the insistence of m shoot was it which is key here it was a if they think they've got a winning hand because they take puget sound literally and think that judge bolts decisions should be interpreted that way that would make sense from the make the argument based on the words of the final decree that's not the same thing as saying one should judge rothstein has decided that well he said puget sound but he meant elliott bay that not necessarily the same thing as saying judge bolt gave consideration to the argument that that should be within their una so the st step was that in final decision one before judge poultice i mentioned the ample expert anthropological reports another argument in the case of muckleshoot the judge  relied upon and then judge ross dean and then this court also looked at the evidence as to what was submitted on behalf of michael shoots fisheries and so i started with they emphasized the freshwater river in systems one of the pieces of evidence before judge bolton judge  muckleshoot tribes appeared to lack the technology for significant open salt water fishing in the way of canoe asking a question i also asked is there a language of exclusion in the file decision in other words judge bolt specifically determine these areas are you in a is is there language that's as but it is these areas are not una's so he made some exclusion decisions proceedings about other areas do you just agree with i do disagree with that because to not read any meaning into the continuing jurisdictions two thousand five hundred and eighty six proviso which means this branch of jurisdiction only open where there is no specific determination mean if you can always have final decision number one and then an a one proceeding with respect to a specific water which is the case here and not prevail and lose and then also a twenty five a six new trial with new evidence so i think three tries are we are are you saying we should infer that if he included something he excluded something else is it your position i don't think you need to infer what i think rivers and only along elliott bay where they descended occasionally to the salt water and may have done some fishing there and there still are you saying that in viewing in a few roth's in a twenty five dollars a one and hearing which was determining determined that what he meant to specifically determine was just elliott bay she was also determining that what he specifically that he ruled that to exclude other parts of  broadly described you on the pupil waters of puget sound from the tip of vashon island north to the fraser river a very expansive subsequently applying this court's decision in muckleshoot one that said if you have a specific determine which we have it's been declared we have there been twenty five a one proceedings where the distro court and this court has said we lack the totality of that expanse of puget sound water in some proceeding five  me to to us i eat or a case i would be interested in seeing that so reference to citations where after reviewing judge bolton tend to be something less well then what happened was it was their determination that this is and this is out or only this is in well the courts subsequent to the muckleshoot one decision handed down during this proceeding have carefully looked at the clarifying language as to when twenty five  six which is the branch that new evidence can come through man may not be used the district court has rejected two hundred and fifty six jurisdiction pleas in at least four cases sense muckleshoot one was decided the consequence after muckleshoot one is that if this court if the district court applying muckleshoot one finds you've been specifically determined you then proceed only under a one that's the clarifying decision of bay and so that's all that was covered by the file decision and that still leads me to my question well what about other areas that were not specifically determined what tells us that those were ruled to be excluded the district court has been i did not satisfying with my answers at the district court has carefully applied this court's clarification language and directed us to look only at the record of judge told if there is it is up to the district court to interpret its continuing jurisdiction the district court when a six application is made will look and decide if a specific determination has been made or if it has not that's the st step in applying this court's guidance and mucklesho t i take it what you're telling us is there are instances where the district court has said that has been specifically determined that the determination was that it's outside the given applicants una that is there is a negative determination that can be extracted from the finalists absolutely you have to find a negative or a limiting effect as this court said in the muckleshoot three decision or what we call the very st paragraph penned by this you thank you but neglected to include certain areas in the tribes una supports the conclusion that he did not intend for them to be included and this analysis is we compare tribes una and if one tribe has the phrase encompassing and so to answer your question so we don't interpret it judge bolts ruling so when he says this is specifically determined and leave interpreted or is it just district courts i think this was case we've interpreted judge bolt's ruling to implicitly x closed certain areas is a correct yes so it's the inclusion of one evidence is an exclusion of the other and we have several examples so what  confounds me about michael's use argument is if the last ten years never happened of jurisprudence in front of the district court there's one other step that makes this complicated which is the language used and up or so i got  supports our conclusion that he did not intend for them to be included you understand that to mean not simply he wasn't adjudicating those areas so that they were the one of those things left off for the future which he clearly intended some open door through that pairs his paragraph now called a six you're saying that that should be taken to mean he did a e and he intended them to be left out and as a result the a six door is not available so two things generically the a six specifically with respect to muckleshoot the a six door is closed as per michael suit one and the case where michael argued that a six should not be available to reconsider or add amendments to their decree so for muckleshoot in particular it's done i tried not to opine in general but exclude certain waters on one side of the would be island and so they're there done with respect to paragraph twenty five dollars a say let's problem i have with inferring that judge bold intended to exclude certain areas is that the language actually is extremely inclusive and so it's hard to infer that when he said puget sound he intended to exclude everything except eliot there's nothing no in the in the language of his actual decision was so that goes back to the analysis that judge rusting did where he looked at the record that was submitted for michael shoot and you found that there was absolutely no evidence of fishing beyond district court can not only interpret what judge bolitho tended to specifically include she can determine or it can determine what he intended to specifically exclude is that correct only by reference to the specific evidence the judge bolt cited in support a finding of fact seventy six dollars so if you look at finding all the findings issued by the district court you'll see that every single one of them was annotated with the specific evidence relied on and so that's what the court does in the one proceeding they say ok court used puget sound very vague and ambiguous in this case so i'm going to look at the record in front of it  and finding of fact seventy six there's been a notation is in front of for every single so there was five hundred dollars proposed finding the facts and conclusions of law on this case at its onset every single one of them was an annotated and reviewed extensively by counsel before they were submitted you see that me and drug introduction for finding fact for for the boat decision but you asked a specific question that i believe has not been interest as do we know what happens after paragraph twenty five a one and we do because we have the l page twenty five your brief i believe so i don't have the brief in front of me and eleven dash two which is reversed on other grounds is now coming back up on appeal seventeen dutch one affirmed by this court on jurisdictional basis but the panel indicated that they would have affirmed on the merits and that is not a published case but later one of the things that bothers me about the last ten years is michael she didn't participate in most if not all of these supper seating to a judge martinez was saying this is how i'm interpret  fifty three there was extensive discussion about paragraph twenty five a six in fifty four there was extensive discussion about paragraph any twenty five a six those are the citations i gave you and we're going to give you a copy of that blue book so you can find them determined for you to get to door number two in those cases fifty three thousand and fifty four in addition there's another one we forgot in our brief fourteen dash one also from but in one thousand nine hundred get the courts also said you know you're not going to get the present additional evidence of are you in a the what's important about that argument is it means the judge or austine actually considered that argument they argued that all of puget sound was there una that judge both considered it and adjudicated it and only because they lost they think they get because you can't argue that judge both considered it in adjudicated in finding of fact number seventy six and then come back twenty years later and say judge bell never looked at the question you could say that he considered the evidence in front of him and judge rothstein  describe that as only being about eliot and there may have been no evidence whatsoever about the rest of puget sound so judge bolton may never have considered about the rest he's only looking at elliott bay i mean that's the argument i don't think that is implausible yes but let's remember in cases like this there are finite there is finality to the findings in fact of conclusions of the law that were made and the ones with respect to muckleshoot still stand here judge of the problem is the beaches and at issue is what if any salt water you in a budge judgeable intended to designate and finding a fact four thousand and seventy six and then later when this court reviewed this so we have another th circuit decision where the court says specifically isolated are infrequent incursions beyond elliott bay in this case that we're reviewing do not meet the usual custom standard i don't see why that's not a ruling that says what is ex sisters who are almost entirely appropriate people who primarily relied on fresh water fishing for their livelihoods in so far as they conducted salt water fishing the reference humans contain no evidence indicating that the fishing occurred regularly anywhere beyond elliot berry exactly and that is affirmed by the th circuit incited but i thought they were not allowed to bring in any new evidence appreciate that the court is focused on the framework what is the framework for understanding how an a six proceeding proceeds on its own merits as opposed to in conjunction with any one proceeding the court this court has never addressed that issue the lower court has addressed the issue inconsistently i would submit but never offered a clear answer it certainly has not offered the answer that's been advanced by the opposing tribes the opposing tribes have unfortunately told the court that  the evidence that we tried to submit was it was excluded at their instance if we when look that supplemental as the our one hundred that's judge rustiness order excluding the evidence most of the cases that have reached the circuit are twenty five dollars it one proceedings going to judge could his comment and one does have to look carefully at whether the court is talking about in a one proceeding that isn't forcing a proceeding and deciding this negative inference or the exclusion what happens if an area is excluded in an foresman situation is different than what we're trying to do here which is to affirmatively prove a new area that's what we're asking for the opportunity to prove those new areas that's not the same situation and in fact muckleshoot one does speak to that because it makes the point that you can't use what we now call the a six door if the area has been specifically determined if the area has been so if the specific location being sought has been specifically determined which again we will and that only has it it says judge polled however did quote specifically determine close quote the location of looneys usual unaccustomed fishing grounds using a description that has turned out to be ambiguous and that which looks to me like exactly what we're facing here which is that he'd determine the muckleshoot see you in a but use the description puget sound and so there has been already twenty years ago litigation over what that meaning of puget sound was the point being made i think by the muckleshoot one is if it's ben specifically determined yes or no it's not a one way street th a six is close to not yes or no your honor i would say only yes because that's not possible well it cannot be the case that the court has never adjudicated and said no that's not within your territory we've said as much  never have the right to fish in that area in the st place in other words all the court was doing in that twenty five dollars a one proceeding just as it did in muckleshoot to ninety seven dollars ducks one was say what we already had under judge regional decision and what you did or in this case the squamish did not have and i think that's what i draw from that that is it's not just a one way street it's not only yes it can be a no if a district court has decided that a given area is not included within a una then a six is not available to try to revisit that that particular area i agree with your writer i just don't agree that judge bolton that judge both specifically said he did not do that that that's say yes i don't think judge bolt meant you can keep coming back forever to keep coming back with more evidence until you finally make me or somebody else say yes i guess i guess what i would say your honor is judged meant to give the tribes an