that indicated at the end the ends that occupied territory at treaty time how did and reserved the right of taking fish in that territory this law was even extended to hunting itself judge bolton said in finding twelve of his decision in one thousand nine hundred seventy four that generally indian individual indians had primary use rights in the territory where they resided so you say the primary use right equal usual and accustomed whether the right to exercised or ceded or not they would equal usually a custom yes or on what the authority for that we would say that we would go back to judge craig and finding three fifty four i'm sorry if i'm finding three fifty six the piece that when the court found that the people occupying a territory held the primary right to fish in the territory right to fish in your mind is actual usual and accustomed fishing yes what's the authority for that other than those two decisions your honor we would simply refer back to article four of the treaty where it was the intent of the tribes to reserve such rights in those areas that they usually use whether the intended to reserve the right is one question was are they actually used and accustomed used the right is another question and so you're wrong is not and i'm wrong about that as a matter of law i would as i think as a matter of law your honor there's a presumption built into it enjoy options not proof necessarily presumption can be overcome by proof and that is why we when we filed a request for determination your honor we ask one to rely on the case law which showed that this was an area that we had occupied as one foundational basis for this and judge bold also said in finding twelve that where the indians resided they utilise the entire drainage for opportunity for fishing later that they found that the twana place their villages near those areas that would fish but when we follow requests for determination we asked the court for the opportunity to be able to present evidence not only relying on the previous decisions but also to establish additional usual and customary as under paragraph twenty five utilizing the same basis as numerous other tribes have done including  in even the the squawks and we think that we have more than enough to satisfy a factual basis look at other see the trial judge both didn't for close the possibility that that the tribes could expand or could there would be additional areas that are or could be established as a usual in a custom lease the way i read read his opinion so i i can understand why you might want to do that but what there's no evidence here that would support him in this situation your honor we would say that this was within our ceded area under our treaty under article one it's within the area described by gibbs that we used an occupied we used the court found that we used it so the question is what do we use it for we would argue that we could show that by occupying it you would of course used for fishing but we should have been given the opportunity as a matter of law and fact to proceed forward to trial and supplement that with additional expert testimony if necessary if the court found that we needed to show actual fishing in that area then we would have liked that opportunity to do that but what the court did was they summarily closed that opportunity off indefinitely from us they said there was no ambiguity in that are you and i only include this area nothing else just like why does this come up now what it what didn't come up when the issue of the fishing rights in the hood canal were brought up so that was a way that was settled out there was a decision based on the evidence at that time historical and anthropological so back in one thousand seventy four the school commission indian tribe up until that time was reservation fishing would have resulted in criminal prosecutions of problem numbers so they travelled only of very short distance at night at best from their reservation to fish they sought the the biggest area they could get at that time which was the commercial fishery and hood can now over the most recent years comas has been looking at its history and its anthropological record and wanted to be able to get access to certain places like lake no wattle which is not very far from the reservation it's not in hooking up so we had villages south of the hood canal watershed we wanted that opportunity to come to court and present that the problem that we had was we went through the celebrity pre filing process we had very few of the twenty one treaty tribes participating in this process and we had to go and basically throw the kitchen sink at it saying that these are all the different ways that we can bring this and one was saying let's rely on what both said about occupancy what craig said about occupancy but if that fails we still would like the opportunity to provide anthropological eleventh's to support actual fishing within that watershed which is still within our ceded area and within our territory now as for hunting we can hunt there because the court utili found that it would have been course included those areas ceded to the united states so it's about use but we want that opportunity on the court let me ask you this did you cross you crossed me for summary judgment i did you present this evidence of we presented to the district court we relied on the records that we occupied and used it but in our reply we also asked the court in the event that the court was not to their motion for summary judgment did you come up with this additional evidence of fishing we did not present additional evidence of fishing at that time and in your own you didn't in your affirmative motion for summary judgment you didn't present any additional evidence no we relied on the record ok material submitted your honor and we land on the record you rely on judge bo finding your conclusion regarding sicko is usual and accustomed areas we relied on and on judge craig's later finding right in the nine volumes of the expert reports from the trial  had for example the expert elmendorf laying out sco much as use of its territories its fishing practices all of that is part of the existing record which we were intended to rely upon which we felt that was more than enough factual basis support those underlying find s but that the court simply rejected that argument and did a truncated analysis when we can say and simply said that the judge told only intended to include hood canal and nothing else and said there was no ambiguity by doing so he foreclose the possibility of us filing in a later date with a new expert report showing there's villages and we used one that all your client asked for at that time the hood canal or in can now that's  because it was a truncated process with barbara lane working in the case that there wasn't enough time to consider every tribe's complete una what judge bolt said in finding  some but by no means all of their usual places a custom place fishing places and so for us they reserve that paragraph trying to five process to confirm what we have got and also to add additional areas if the court finds that we haven't satisfied it with the existing record or rejects our argument of occupancy alone which then we should have been able to supplement it with additional evidence  me the base relevance of judge craig's decision and what is it eighty four it was in eighty four yes you are wrong so judge craig what you rely on his decision as well yes we rely on judge craig because he went and took in bringing the case the corks we had in a contentious battle with multiple tribes including the jamestown port gamble s'klallam and lower machine we reached the hook canal agreement with the school alum and clown but we had to go to trial at that trial with the cyclone wish we were forced to present evidence regarding the geographic scope of our entire territory that we occupied in eight hundred fifty four which was described by george gives the court adopted that as the best evidence of our territory found that we long used an occupied it and that the people that occupied territory had the primary right of taking fish there and he accurate that would allow us to go forward but we never asked not to have the opportunity to present supplemental evidence the problem with when we if we brought the cross motion for summary judgment if we had we have i think the whole key to the eighty four case was all about your primary establishing a primary right in the canoe it was about establishing a primary right and now but unfortunately it went way out  into the field i mean it was way out there because of the way that it went to trial over multiple dates the court forced an analysis of the entire anthropological record regarding scotia's use of areas now that you're getting any findings of usual and accustomed fishing areas she did he made he is the heart of his decision was you get a primary right in hood canal he made it jason he made a decision that the hood canal was occupied and then he made that one unique finding which was built on boats to finding from finding twelve that said if you live there you fish there and so we went to court and said no he said if you live there you have the primary rights to fish there but he also said to the extent that the  wanted territory the court finds that they did so by virtue secondary rights it was invited guests so the ones who fished were the secondary right didn't say that that your people fish the both decided and in the initial case nine hundred seventy four that are usual and customary include talking about nineteen eighty four sub nine hundred eighty four the court found that we had a primary right the first right and he found that in his conclusion ninety two your folks it was the others he did make a finding that they fished there by invitation to us but we would say again that he went beyond that by laying out the geographic boundaries of the totality of the territory and that people that occupied it had the primary right of taking fish there are requests for determination asked for both the right of taking fish and the primary right of regulation ok you're just about well you're over your time by ten seconds but i'll give you a given its previous arguments to the court that its una was confined exclusively to hood canal counsel mis understand several things about a one and or misstate several things about a one and the eighty one one determination the primary rights determination by judge craig nin ety four the first of those is that occupancy equals automatically una and that's not the standard the standard from judge bolt reiterated by the district court below is that to establish una you must provide evidence of fishing the district court rules for invoking the continuing jurisdiction of the u s c washington injunction and it was not an opportunity endlessly just to come back it was to come back for you in a that had not been specifically determined and what the district court did here consistent with ninth circuit precedent from me which indicate that the original determination of their una all the water's flowing into the hood canal in the canal itself was in fact a original of that proceeding may not have included all of the usual unaccustomed areas of fishing that he identified in that case that said were left open the possibility that there might need to be other proceedings to identify other areas and in fact we know that in fact there have been such proceedings that's correct resulted in additional una for tribes that had you any identified in the original bill that's correct your honor judge baugh left open the opportunity to return for grounds i had not been specifically determined but the cases that allowed a six to proceed are that good comics relied upon in their briefing are all thirty to thirty five years old and all of them preceded this court's precedent in muckleshoot v lummy in that case the court had to decide whether a one or a six was available and to make a evidentiary ruling and they concluded that a six could not be available because you and i had been specifically determined and the reference that the tort made in that regard was that judged a regional determination of law means you and a was a specific determination and that's exactly what the district court has done here it is also the case that if you accept a coma she's reading of of a six that every tribe can come back an unlimited number of times over an indefinite period or forty five years and at this point to ask for any river baby whatever that they didn't specifically ask for the first time and what judge martinez is saying consistent with ninth circuit precedent is that and original determination can be a specific determination and it is here and this is the district court managing the litigation so this should be reviewed for abuse of discretion only yes your honor that's one forty one f third thirteen fifty five and that discussion is particularly at thirteen fifty nine thirteen sixty i would note also your honor that more recently in a case that was decided after our briefing judge bolt also excuse me your honor judge martinez made the same ruling regarding muckleshoot u n a and there is a six claim that's now pending on appeal here and use the exact same reasoning that i'm giving here which is that indicates that an original determination can be determination support fishing outside the canal and nothing in the eighty one one one hundred eighty four craig ruling does either that was a primary rights determination it considered only whether you could call michel's between it and other tribes that also had previously second conclusion is the and the scholars have una in the book now the third conclusion is we haven't decided before if there's a primary right and if so who gets it and then conclusion ninety two says yeah in fact it is commas who gets that primary right and they cite the finding in fact three fifty four not that gives a quote which is just part of the corroborating evidence they cited three fifty four which is the treaty time territory of the twana indians and compass all the waters of the hood canal successfully both the unique and clearly definable nature of it una and also stated that the school comissioner confined exclusively to hood canal those that was arguments were made in eighty one one and it made this strategic choice in convincing the court that it could exclude it please the court my name is lauren rasmussen for the board campbell and james holmes tribes i'm here today to just affirm what my colleague has said there's one very important piece of this that has been completely confused by t not a second claim for you in a but what's important about that decision that was issued by magistrate cooper and is found one fifty nine is the court i would have dismissed the claim at the time if it had been a second un a claim so what that means is paragraph twenty five a six was created at the beginning of the case to allow tribes to get their house in order and there was a decade of tribes getting the house in order and there were provisional findings and there were statements by judge both that says you could come back and you could you can modify this but this practice has not happened until nineteenth one thousand nine hundred five was the last time judge both put a statement in somebodies una that says this doesn't mean you can't come back and then you fast forward to one nine hundred ninety eight and you have this court saying let me use you in a is pacifically determine it was specifically determined in finding if in the original bold decision because of that they cannot submit new evidence and judge martinez was merely managing the case and applying the law of the circuit which he's required to do and since that time una along the coastline and they wanted to expand out into the open ocean and the parties agreed and the court the case of yeah it does sound familiar doesn't it and it's coming back  so we look at the cooper decision he said look we don't have to look at whether the early litigation would be for close because there are two different causes of action this contradicts a come with his argument that they're the same thing that the human is within the primary right and so it's like getting mega you know thing that you both of them are included this is absolutely incorrect and it was the only reason they prevailed before and we have the ninth circuit in sca combers for says us actually adopting this and they said scott thomas is really not leaving really is not really getting the same cause of action so the scope for us as us case the ninth circuit affirms that point but i want to go back to some of the things that's become ayesha said because i think that in some sense i don't know by design or default river would have been within our ceded territory in addition our una extends outside of our ceded territory up into the sand wants so these are not the same things you are not these are apples and oranges your honor and one of the important pieces that that has come up over the last couple of years has become a tribe has three times in the last couple of years argued that the primary right meant more than what the courts have said it meant this is the third time that they have exaggerated what it means the first two were the goldmark decision where they argued the primary right to fish included the primary right to exclude this column from their hunting territory and the second time was the force and case that was just argued and your honor i apologize it's now been affirmed by this court and that's because number seventeen desh three five three three six has side has said something that should resonate with the court here that no plausible reading supported this could come as tribes arguments and that similar to this to no possible reading makes the two causes of action include each other no possible reading supports the search and the finding of fact three fifty three was an order of this court on primary rights and the your honour's only need to turn pre filing question is irrelevant because judge martinez considered this case as if it had been filed correctly and as if all the procedures at the door all so from our perspective it doesn't matter because he gave them the benefit of the doubt in order to not watershed is nowhere on this map so much says an education about what can now doesn't mean hood canal and not the sat sop i would say that that's incorrect when you have a map that says this is your territory and it contain the area you say is contained in the decision and the court quotes that statement three times in its decision at six twenty six f stop at fourteen eighty nine  fourteen ninety and fourteen ninety one exhibit exhibit a as depicted in exhibit a stands up here and says your honor finding a factory fifty five three means we have you nay and primary rights in the sets up i would say that that goes to the credibility and actually the last three cases go to the incredibility of this tribe to argue things that are there that are not there and to try to foreclose other parties but then i also want to turn this court's attention to another case that's coming down the line which kind of makes the difference in this question of whether there's a revolving door is we have two cases of the court has said paragraph twenty five a six for closes this you have a specifically determined una and we have another one that's follow the district court which is the still  the court specifically said because you don't have a lawyer we're going to let you come back and that's the kind of distinct circumstance which reminds this court of things like ackerman and clapp brought the idea of you didn't have an attorney you didn't have any money we're going to let you come back and we're going to let you expand later but if you come which has no such statement the litigation of the past decade makes it clear that very much has a lawyer and the money to pay for their defense and their affirmative claims and is not at all the kind of circumstance which the court was leaving these preliminary findings for and has no such preliminary finding the court did not abuse its discretion and similar into the case of new hampshire v main when justice ginsburg said something that i think should resonate with the court she said to new hampshire you know sort of tests this historical materials there were no let that new hampshire is relying on historical materials that were no less available in the one nine hundred seventy s than they were today and they had every incentive to consult those materials and that goes to judicial stoppel but it also goes to equity because comas had every incentive to use that finding of fact three fifty three that information from gibbs and argue for the sets up drainage at the time they filed that it didn't fit with their theory of the case so they didn't and so now to come back and say now that i have pulled the wool over your eyes and i've gotten you to sign the hood canal agreement based on the fact that we're  confined exclusively to hood can now i'm going to come back and i'm going to blow that wide open and i'm going to ask for something more and the court adopt opted the hood canal agreement as an order of the court and in that agreement it says th understand from his argument or from the argument here is that the territory that was identified for this it encompassed just a bit of the so is that correct or not so what's correct is that the treaty of point no point includes the language that the overall ceded territory of the four tribes and this could coalition includes areas within th but it says these tribes jointly cede so it is not an exclusive territory it is not say that is an area where they can all fish in fact this could come as you can't fish in much of the ceded territory on the coast of the strait of juan de fuca because it's not a historical fishing location for that drive and so this is that come flaming just because it's part of our ceded territory are seeded territory that we gave up jointly under the treaty does not make it a apples and oranges and they're very sustained and defined things that you have to prove and the big point is when i go back to cooper and i go back to the court is they had argued back in the eighty's that the primary right included this it talks about for us our true fishery included all the waterways with this wall included with pew all included they got more they had the opportunity to go forward under twenty five six now for us the s'klallam would argue that we're precluded by the hood canal agreement it doesn't say that it says we were entirely dependent on hood canal at the time because that's true that was the only un a established in eighty four if the gift judge craig want that also contradictory as they say the prime right case was only about the primary right but then they go and say it's about your una so it's one of the other so if it's about a primary right alone then we should be