FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SWINOMISH INDIAN TRIBAL 

COMMUNITY; TULALIP TRIBES; 

UPPER SKAGIT INDIAN TRIBE, 

Petitioners-Appellees, 

 v. 

LUMMI NATION, 

Respondent-Appellant, 

STILLAGUAMISH TRIBE OF 

INDIANS; HOH INDIAN TRIBE; 

SUQUAMISH INDIAN TRIBE; 

STATE OF WASHINGTON; 

JAMESTOWN S’KLALLAM TRIBE; 

PORT GAMBLE S’KLALLAM 

TRIBE; SKOKOMISH INDIAN 

TRIBE; LOWER ELWHA 

KLALLAM TRIBE; PUYALLUP 

TRIBE OF INDIANS, 

Real Parties in Interest.

No. 21-35812 

D.C. No. 2:19-sp00001-RSM 

ORDER AND 

AMENDED 

OPINION

SWINOMISH INDIAN TRIBAL 

COMMUNITY; TULALIP TRIBES; 

No. 21-35874 
2 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

UPPER SKAGIT INDIAN TRIBE, 

Petitioners-Appellees, 

 v. 

LUMMI NATION, 

Respondent, 

and 

JAMESTOWN S’KLALLAM TRIBE; 

PORT GAMBLE S’KLALLAM 

TRIBE, 

Real-Party-in-InterestAppellants, 

STILLAGUAMISH TRIBE OF 

INDIANS; HOH INDIAN TRIBE; 

SUQUAMISH INDIAN TRIBE; 

STATE OF WASHINGTON; 

SKOKOMISH INDIAN TRIBE; 

LOWER ELWHA KLALLAM 

TRIBE; PUYALLUP TRIBE OF 

INDIANS, 

Real Parties in Interest.

D.C. No. 2:19-sp00001-RSM 

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, District Judge, Presiding
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 3

Argued and Submitted November 9, 2022

Seattle, Washington

Filed September 11, 2023

Amended October 3, 2023

Before: Sandra S. Ikuta and Daniel P. Collins, Circuit 

Judges, and Sidney A. Fitzwater,* District Judge.

Order;

Opinion by Judge Collins

SUMMARY**

Tribal Fishing Rights

The panel affirmed the district court’s grant of summary 

judgment to the Swinomish Indian Tribal Community,

Tulalip Tribes, and Upper Skagit Indian Tribe; dismissed as 

moot a cross-appeal filed by the Jamestown S’Klallam Tribe 

and Port Gamble S’Klallam Tribe (collectively, 

“S’Klallam”) from the district court’s grant of summary 

judgment; and dismissed as moot S’Klallam’s appeal of the 

district court’s denial of the S’Klallam’s motion for 

reconsideration, in a long-running case regarding Indian 

fishing rights in certain waters in Washington state.

* The Honorable Sidney A. Fitzwater, United States District Judge for 

the Northern District of Texas, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
4 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

The current dispute concerns the usual and accustomed 

fishing places in which the Lummi Nation (“the Lummi”) 

have fishing rights under a 1974 decree, issued by District 

Judge Boldt, over the waters east of Whidbey Island in Puget 

Sound.

In interpreting Judge Boldt’s decree, the panel followed 

the two-step inquiry recently described in Upper Skagit 

Indian Tribe v. Sauk-Suiattle Indian Tribe, 66 F.4th 766, 

770-71 (9th Cir. 2023). At step one, a court uses the standard 

tools for interpreting precedent, starting with the text of the 

applicable Finding of Fact, as well as the record evidence 

before Judge Boldt and other evidence raised by the moving 

party that sheds light on Judge Boldt’s understanding of the 

geography at the time. At step two, a court determines 

whether the moving party has carried the burden of showing 

that there was no record evidence that favors the non-moving 

party’s contrary interpretation of the Finding of Fact in a way 

that would undermine the moving party’s theory of Judge 

Boldt’s intent.

Applying the two-step inquiry, the panel concluded that 

the district court correctly held that the Swinomish, Tulalip, 

and Upper Skagit carried their burden to warrant a ruling, 

under Paragraph 25(a)(1) of the 1974 Decree, that Judge 

Boldt’s “determination of Lummi’s usual and accustomed 

fishing grounds and stations” did not extend to the disputed 

waters at issue here.

At step one, the panel held that it was fundamentally 

ambiguous whether Judge Boldt and the parties in 1974 

would have understood the marine areas of Northern Puget 

Sound from the Fraser River south to the present environs of 

Bellingham Bay, to include any waters east of Whidbey 

Island. At step two, the panel held that the Swinomish, 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 5

Tulalip, and Upper Skagit met their burden to show that 

there was no evidence in the record before Judge Boldt of 

historical Lummi fishing in the disputed waters beyond what 

would be merely incidental or occasional. The panel 

declined to read the decree to grant the Lummi fishing rights 

east of Whidbey Island.

The S’Klallam filed a cross-appeal to object certain 

statements in the district court’s summary judgment order 

concerning fishing rights in waters west of Whidbey Island, 

where the S’Klallam claim fishing rights. The panel held 

that it had already clarified matters in the S’Klallam’s favor 

in the ordinary course of disposing of the Lummi’s appeal, 

and therefore the S’Klallam’s cross-appeal was moot.

COUNSEL

James R. Sigel (argued), James M. Schurz, Mark D. 

McPherson, and Camille Framroze; Morrison & Foerster 

LLP, San Francisco, California; Deanne E. Maynard, 

Morrison & Foerster LLP, Washington, D.C.; for 

Respondent-Appellant Lummi Nation.

Emily H. Haley (argued) and James M. Jannetta, Office of 

the Tribal Attorney, Swinomish Indian Tribal Community, 

La Conner, Washington; for Petitioner-Appellee Swinomish 

Indian Tribal Community.

David S. Hawkins (argued), Upper Skagit Indian Tribe, 

Sedro Wooley, Washington; Arthur W. Harrigan Jr., Tyler 

L. Farmer, and Bryn R. Pallesen, Harrigan Leyh Farmer & 

Thomsen LLP, Seattle, Washington; for Petitioner-Appellee 

Upper Skagit Indian Tribe
6 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

Lauren P. Rasmussen (argued), Law Offices of Lauren P. 

Rasmussen, Seattle, Washington, for Real-Parties-inInterest Appellants Jamestown S’Klallam and Port Gamble 

S’Klallam Tribes.

Mason D. Morisset and Thane D. Somerville, Morisset 

Schlosser Jozwiak & Somerville PC, Seattle, Washington, 

for Petitioner-Appellee Tulalip Tribes.

Joseph V. Panesko, Assistant Attorney General, Office of 

the Washington Attorney General, Olympia, Washington, 

for Real-Party-in-Interest State of Washington.

Craig J. Dorsay, Corin La Pointe-Aitchison, and Lea Ann 

Easton, Dorsay & Easton LLP, Portland, Oregon, for RealParty-in-Interest Hoh Indian Tribe.

Rob R. Smith, Kilpatrick Townsend & Stockton LLP, 

Seattle, Washington, for Real-Party-in-Interest 

Stillaguamish Tribe of Indians.

Maryanne E. Mohan, Suquamish Tribe, Suquamish, 

Washington; John W. Ogan, Law Office of John W. Ogan, 

Sisters, Oregon; for Real-Party-in-Interest Suquamish 

Indian Tribe.

Earle D. Lees III, Skokomish Indian Tribe, Shelton, 

Washington, for Real-Party-in-Interest Skokomish Indian 

Tribe.

Samuel D. Hough, Lower Elwha Klallam Tribe, Port 

Angeles, Washington; Stephen H. Suagee, Suagee Attorney 

at Law, Port Angeles, Washington; for Real-Party-inInterest Lower Elwha Klallam Tribe.

Samuel J. Stiltner and Alec Wrolson, Puyallup Tribe of 

Indians, Tacoma, Washington, for Real-Party-in-Interest 

Puyallup Tribe of Indians. 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 7

ORDER

The slip opinion filed on September 11, 2023 is amended 

by changing the carryover paragraph on pages 40–41 to read 

as follows:

The Lummi attempt to distinguish Upper 

Skagit on the ground that the court referenced 

a 1975 bench ruling from Judge Boldt, and 

that no such bench ruling is present in the 

record of this case. We see no legally 

relevant distinction. The Upper Skagit court 

merely noted that Judge Boldt’s ruling from 

the bench further confirmed the absence of 

any record evidence of tribal fishing by the 

Suquamish in the disputed east-of-WhidbeyIsland waters. 590 F.3d at 1025. We 

conclude that there is a similar lack of record 

evidence here.

An amended version of the opinion, reflecting this 

change, accompanies this order. With the opinion as 

amended, the panel has unanimously voted to deny the 

petition for panel rehearing filed on September 25, 2023 

(Dkt. No. 93).

Accordingly, the petition for rehearing is DENIED. No 

further petitions for rehearing or rehearing en banc will be 

entertained.
8 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

OPINION

COLLINS, Circuit Judge:

This is the latest proceeding in a long-running case

regarding Indian fishing rights in certain waters in 

Washington State. The governing law is a 1974 decree 

issued by Judge George Boldt of the U.S. District Court for 

the Western District of Washington, which settled various 

competing tribal rights arising from, inter alia, the 1855 

Treaty of Point Elliott. We have interpreted that 1974 decree 

many times since its issuance, and these appeals call upon us

to do so once again.

This proceeding was instituted by three Indian tribes who 

sought a ruling that the recognized fishing rights of the 

Lummi Nation (“the Lummi”) under the 1974 decree do not 

extend to certain areas. Specifically, the current dispute 

centers on a single line in the decree recognizing that “the 

usual and accustomed fishing places” in which the Lummi 

have fishing rights “include[] the marine areas of Northern 

Puget Sound from the Fraser River south to the present 

environs of Seattle, and particularly Bellingham Bay.” 

United States v. State of Washington, 384 F. Supp. 312, 360 

(W.D. Wash. 1974) (“Final Decision I”). For the reader’s 

convenience, the Fraser River, Seattle, and Bellingham Bay 

are shown here:1

1 These physical maps are taken from the Bureau of Land Management’s 

webpage, at 

https://webmaps.blm.gov/program_apps/BLM_Natl_Recreation_Oppor

tunities/. We may properly take judicial notice of maps produced by a 

government agency for the limited purpose of elucidating, for the reader, 

the general locations of the relevant geographic areas. Montana Green 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 9

Party v. Jacobsen, 17 F.4th 919, 927 (9th Cir. 2021). We have added 

markers for relevant geographic points in large font for the reader’s 

convenience. 

Fraser River

Bellingham 

Bay

Seattle
10 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

The question is whether the specific waters in dispute 

here—namely, the sheltered waters east of Whidbey Island 

and south of Fidalgo Island—fall within the Lummi’s 

historical fishing territory. For the reader’s convenience, the 

approximate location of the disputed waters is shown here:

Fidalgo Island

Whidbey Island

Disputed

Disputed

Disputed

Disputed

Disputed
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 11

The district court ruled against the Lummi, holding that 

the disputed waters are not part of their historical fishing 

waters under the 1974 decree. We affirm.

I

A

In 1854 and 1855, Isaac Stevens, Governor of what was 

then Washington Territory, signed a series of treaties with 

the Indian tribes of the Pacific Northwest. One of those 

treaties was the 1855 Treaty of Point Elliott.2 Under the 

treaty’s terms, the signatory tribes agreed to “cede, 

relinquish, and convey to the United States” much of their 

tribal land. Treaty of Point Elliott, art. I, 12 Stat. 927 (1859). 

But the tribes retained their “right of taking fish at usual and 

accustomed grounds and stations,” which the Treaty 

“secured to said Indians in common with all citizens of the 

Territory.” 12 Stat. at 928. The Treaty did not specify, 

however, the precise location of those “usual and 

accustomed” fishing waters. Id.

More than a century later, the questions left open by the 

various Stevens treaties sparked complex litigation in the 

U.S. District Court for the Western District of Washington 

between Indian tribes, the State of Washington, various nonIndian fishermen, and the United States. In February 1974, 

District Judge George Boldt, who presided over that 

litigation, issued a wide-ranging decree to settle the parties’ 

competing claims to “treaty right fishing” across the various 

2 Others included the Treaty of Medicine Creek, 10 Stat. 1132 (1855); 

the Treaty of Point No Point, 12 Stat. 933 (1859); the Treaty of Neah 

Bay, 12 Stat. 939 (1859); and the Treaty with the Yakamas, 12 Stat. 951

(1859). Each treaty included similar language regarding Indian fishing 

rights in “usual and accustomed” areas. See Final Decision I, 384 F. 

Supp. at 331.
12 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

waterways between the state capital and the Canadian 

border, some 135 miles to the north. Final Decision I, 384 

F. Supp. at 327. Judge Boldt’s decree purported to fix the 

location of “some,” though “by no means all,” of the “usual 

and accustomed fishing places” historically frequented by 

various Indian tribes in waters “of the State of Washington 

west of the Cascade Mountains and north of the Columbia 

River drainage area.” Id. at 327–28, 333. This area covered

more than 100 nautical miles and included “the American 

portion of the Puget Sound watershed, the watersheds of the 

Olympic Peninsula north of the Grays Harbor watershed, 

and the offshore waters adjacent to those areas.” Id. at 327–

28. Judge Boldt’s wide-ranging decree was substantially 

affirmed by this court, United States v. State of Washington, 

520 F.2d 676, 693 (9th Cir. 1975), and ultimately by the

Supreme Court, Washington v. Washington State 

Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 

685–87 (1979).

3

3 The Supreme Court initially denied certiorari, 423 U.S. 1086 (1976), 

leaving our court’s affirmance intact. However, when the Washington 

Supreme Court subsequently adopted a different reading of the Stevens 

treaties, the U.S. Supreme Court granted review of various federal and 

state decisions presenting that treaty interpretation issue. 443 U.S. at 672 

& n.19, 674. The U.S. Supreme Court agreed with Judge Boldt that the 

treaty phrase “in common with all citizens of the Territory” referred to a 

group-based “right to take a [certain] share of each run of fish that passes 

through tribal fishing areas,” rather than a mere “personal right to 

attempt to land fish” on the part of each individual tribal member, no 

different from the right to fish of any other citizen of Washington State. 

Id. at 674, 679; see also Final Decision I, 384 F. Supp. at 343; Upper 

Skagit Indian Tribe v. Washington, 590 F.3d 1020, 1022 (9th Cir. 2010). 

The Court, however, made certain modifications to the formula Judge 

Boldt used to calculate the tribal share of the fishing catch. 443 U.S. at 

687–89.
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 13

Judge Boldt recognized, however, that a single decree 

could not definitively resolve every future dispute over tribal 

fishing rights anywhere in western Washington. Final 

Decision I therefore reserved the district court’s continuing 

jurisdiction in two circumstances relevant here. First, any of 

the parties to the 1974 decree could invoke the district 

court’s continuing jurisdiction to determine “whether or not 

the actions, intended or effected by any party (including the 

party seeking a determination) are in conformity with Final 

Decision # I.” Final Decision I, 384 F. Supp. at 419. 

Second, any of the parties could request that the district court 

determine “the location of any of a tribe’s usual and 

accustomed fishing grounds not specifically determined by 

Final Decision # I.” Id. These two sources of retained 

jurisdiction appear, respectively, in Paragraphs 25(a)(1) and 

25(a)(6) of the current, amended version of Judge Boldt’s 

1974 permanent injunction.

4

 In effect, Paragraph 25(a)(1) 

allows the district court to adjudicate present-day disputes 

about what the 1974 decree really said. Paragraph 25(a)(6) 

allows the district court to adjudicate disputes about what the 

1974 decree left unsaid—that is, historical fishing rights the 

1974 decree did not purport to address at all.

In the nearly 50 years since Judge Boldt’s 1974 decree, 

the Indian tribes of Washington State have often invoked the 

district court’s continuing jurisdiction under Paragraph 25 to 

settle overlapping tribal claims to historical fishing waters. 

This court, in turn, has often been called upon to review the 

1974 decree in the exercise of its appellate jurisdiction over 

the district court. The task of interpreting the occasionally

4 These provisions, previously termed 25(a) and 25(f), were renumbered 

in a 1993 order amending paragraph 25 of the 1974 decree. See United 

States v. Washington, 18 F. Supp. 3d 1172, 1213 (W.D. Wash. 1993)

(compiling various orders in the overall matter from 1991–1993).
14 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

cryptic terms of a decades-old decree, itself based on a 

sometimes thin record of anthropological evidence 

regarding the practices of Indian tribes more than a century 

earlier, has not always proved to be an easy one. 

Nonetheless, it remains the task we have today.

B

This appeal involves a dispute among several Indian 

tribes over the waters east of Whidbey Island, a land 

formation that stretches approximately 37 miles north-tosouth across Puget Sound. The disputed waters include 

Skagit Bay, directly south of the Swinomish Reservation; the 

Saratoga Passage between Whidbey Island and Camano 

Island; Port Susan, a bay separating Camano Island from the 

mainland; Holmes Harbor, a cove at the southern end of 

Whidbey Island; and Possession Sound, near the mainland 

city of Everett.

With respect to the core dispute on appeal, the parties are 

the Swinomish Indian Tribal Community; the Tulalip 

Tribes; the Upper Skagit Indian Tribe; and the Lummi 

Nation.5 All four tribes bear respective rights under the 

Treaty of Point Elliott, as recognized in Judge Boldt’s 

decrees,

6 and the primary issue on appeal concerns the 

5 For purposes of this case, the Lummi also include “the Semiahmoo and 

Samish Indians who were subsumed under the Lummi designation.” 

Final Decision I, 384 F. Supp. at 360.

6 For the Swinomish, see Swinomish Indian Tribal Cmty. v. BNSF Ry. 

Co., 951 F.3d 1142, 1146 (9th Cir. 2020); United States v. Washington, 

459 F. Supp. 1020, 1039 (W.D. Wash. 1978). For the Lummi, see United 

States v. Lummi Nation, 876 F.3d 1004, 1007 (9th Cir. 2017); Final 

Decision I, 384 F. Supp. at 360. For the Upper Skagit, see Upper Skagit 

Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1651 (2018); Final Decision 

I, 384 F. Supp. at 379. For the Tulalip, see Greene v. United States, 996 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 15

fishing rights of the Lummi. Specifically, the Lummi 

Nation—which, in a line of cases over the past two decades,

has successfully persuaded this court to recognize the tribe’s

historical fishing rights in certain waters to the west of 

Whidbey Island, see United States v. Lummi Nation, 876 

F.3d 1004, 1011 (9th Cir. 2017); United States v. Lummi 

Indian Tribe, 235 F.3d 443, 453 (9th Cir. 2000)—would like 

to fish in the waters east of Whidbey Island as well. The 

Lummi are opposed in this endeavor by certain tribes who 

currently fish east of Whidbey Island: the Swinomish, the 

Tulalip, and the Upper Skagit. Under the 1974 decree, one 

tribe’s “usual and accustomed” fishing grounds are not 

legally exclusive of another’s—that is to say, multiple tribes 

may, as a purely legal matter, have overlapping “usual and 

accustomed” fishing grounds. Final Decision I, 384 F. 

Supp. at 332, 417. But since the overall tribal catch is limited 

to “50 percent of the harvested fish from runs passing 

through [tribes’] off-reservation” usual and accustomed 

fishing grounds, Upper Skagit Indian Tribe v. Washington, 

590 F.3d 1020, 1022 (9th Cir. 2010), each tribe has a

practical incentive, via proceedings like the one before us, to 

eliminate fishing competition from other tribes in 

overlapping waters.

In October 2019, the Swinomish, Tulalip, and Upper 

Skagit filed a joint “Request for Determination” in the 

District Court for the Western District of Washington, 

invoking that court’s continuing jurisdiction under 

Paragraph 25(a)(1) of Judge Boldt’s 1974 permanent 

injunction. The requesting tribes claimed that the Lummi, 

who planned to open a crab fishery east of Whidbey Island, 

F.2d 973, 975 (9th Cir. 1993); United States v. Lummi Indian Tribe, 841 

F.2d 317, 317 (9th Cir. 1988);United States v. Washington, 459 F. Supp. 

at 1039.
16 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

had no fishing rights in that area under the 1974 decree. The 

tribes asked the district court for “a declaration to that 

effect,” as well as an injunction “prohibiting Lummi from 

issuing regulations purporting to open any portion” of the 

disputed area “to Lummi fishing and prohibiting Lummi 

from fishing for any species in any portion” of the area.

The parties filed cross-motions for summary judgment. 

The Swinomish’s motion asked the court to declare that “the 

usual and accustomed fishing places” of the Lummi “do not 

include the secluded waters to the east of Whidbey Island” 

and to grant “permanent injunctive relief enjoining Lummi 

from fishing or authorizing its members to fish for any 

species” in the disputed waters. The Upper Skagit’s motion 

asked the court “to grant summary judgment in its favor by 

declaring that the area previously adjudicated to be the usual 

and accustomed grounds” of the Lummi Nation does not 

include the disputed “waters east of Whidbey Island.” The 

Tulalip’s motion asked the court to “prohibit the Lummi 

Nation . . . from engaging in any fishing for finfish or 

shellfish” in the disputed waters; the Tulalip “also move[d] 

for a permanent injunction enjoining Lummi and its fishers 

from engaging in any fishing in the named Region.”

The Lummi’s motion, for its part, asked the court to 

“dismiss[] the Request for Determination” filed by the 

Swinomish, Upper Skagit, and Tulalip, and to “rul[e] that the 

Lummi’s usual and accustomed fishing grounds and 

stations,” as determined by Judge Boldt’s 1974 decree, do

“include marine areas . . . to the east of Whidbey Island,” 

including all five of the specific areas in dispute here.

C

The district court held for the Swinomish, Tulalip, and 

Upper Skagit, stating that the disputed waters were not 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 17

included in Judge Boldt’s “determination of Lummi’s usual 

and accustomed fishing grounds and stations.” The district 

court consequently denied the Lummi Nation’s motion for 

summary judgment, granted summary judgment in part to

the Swinomish, Upper Skagit, and Tulalip, and declared the 

matter closed on September 20, 2021.7 The Lummi filed a 

timely notice of appeal three days later.

On October 1, however, the Jamestown S’Klallam Tribe 

and Port Gamble S’Klallam Tribe (collectively, 

“S’Klallam”) made an appearance. The S’Klallam filed a 

motion for reconsideration asking the district court to 

“reconsider and amend certain language” from its summary 

judgment order. The S’Klallam objected “particularly” to 

language in the district court’s order that, in the S’Klallam’s 

view, could be construed to imply that additional tribes, 

other than the Lummi, might have fishing rights in certain 

waters west of Whidbey Island where the S’Klallam claim 

fishing interests. In the S’Klallam’s view, the district court 

should have made clearer that only the Lummi, and not 

Indian tribes more generally, were covered by the challenged 

language in the district court’s order. The S’Klallam asked 

the court to “delete or reframe the [relevant] sentences to 

make clear the only precedent or law of the case created here 

is how Lummi,” not other tribes, fished west of Whidbey

Island.

The district court denied the S’Klallam’s motion for 

reconsideration in a brief order. The district court concluded 

that, because the Lummi had timely filed an appeal to our 

court, the district court had already lost jurisdiction over the 

7 Summary judgment was granted only “in part” because the district 

court denied, as unnecessary, the three tribes’ requests for “permanent 

injunctive relief beyond that provided in the underlying case.”
18 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

case (and hence jurisdiction to adjudicate the S’Klallam’s 

motion for reconsideration). “[E]ven if the Court had 

jurisdiction to consider the motion for reconsideration,” the 

district court continued, “the Court would deny the motion.”

The S’Klallam then filed a timely notice of appeal 

seeking to “cross-appeal” the district court’s original order 

of September 20, “as well as appeal” the court order denying 

the S’Klallam’s October 1 motion for reconsideration.

II

As noted above, this case asks us to determine the 

meaning of Judge Boldt’s 1974 statement that the usual and 

accustomed fishing places of the Lummi Indians, at the time 

of the Treaty of Point Elliott in 1855, included “the marine 

areas of Northern Puget Sound from the Fraser River south 

to the present environs of Seattle, and particularly 

Bellingham Bay.” Final Decision I, 384 F. Supp. at 360. 

Before addressing the meaning of that phrase, we first clarify 

the general principles that we have developed to interpret 

Judge Boldt’s decrees—a set of principles we have often 

referred to as the “Muckleshoot framework,” after a series of 

cases involving that Tribe.8

A court reviewing Judge Boldt’s 1974 decree pursuant 

to Paragraph 25(a)(1) is interpreting a prior judicial decree

and, as such, is carrying out what is ultimately a legal 

inquiry. See United States v. DAS Corp., 18 F.4th 1032, 

8 Specifically, the referenced framework derives its name from three of 

our prior cases: Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 

1355 (9th Cir. 1998); United States v. Muckleshoot Indian Tribe, 235 

F.3d 429 (9th Cir. 2000); and Muckleshoot Indian Tribe v. Lummi Indian 

Nation, 234 F.3d 1099 (9th Cir. 2000). We have further developed that 

framework in a series of subsequent cases. See generally Upper Skagit 

Indian Tribe v. Sauk-Suiattle Indian Tribe, 66 F.4th 766 (9th Cir. 2023). 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 19

1040 (9th Cir. 2021). In conducting that inquiry, we have 

explained, a reviewing court should construe the decree “so 

as to give effect to the intention of the issuing court”—i.e., 

Judge Boldt—at the time the decree was written. 

Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 

1359 (9th Cir. 1998) (citation omitted). “We have 

sometimes described a subproceeding under paragraph 

25(a)(1) as involving a ‘two-step mode of analysis.’” Upper 

Skagit Indian Tribe v. Sauk-Suiattle Indian Tribe, 66 F.4th 

766, 770 (9th Cir. 2023) (“Sauk-Suiattle”) (citation omitted). 

We recently described that two-step inquiry as follows:

At step one, a court uses the standard tools for 

interpreting precedent, starting with the text 

of the applicable Finding of Fact and 

considering the language at issue in the 

context of the Final Decision as a whole. A 

court also considers the record evidence 

before Judge Boldt, along with any other 

evidence raised by the moving party that 

sheds light on Judge Boldt’s understanding of 

geography at the time. At this step, we have 

upheld a district court’s decision as correctly 

interpreting Judge Boldt’s opinion on the 

basis of information known to Judge Boldt 

and the words he chose. However, whether 

the text of a Finding of Fact is unambiguous 

or not, a court must understand the Finding of 

Fact in light of the facts of the case, and so 

may proceed to step two to determine 

whether the moving party has carried the 

burden of showing that there was no evidence 

in the record before Judge Boldt, that favors 

the non-moving party’s contrary 
20 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

interpretation of the Finding of Fact in a way 

that would undermine the moving party’s 

theory of Judge Boldt’s intent. 

Id. at 770–71 (simplified). The goal of both steps of “this 

two-step inquiry” is to “determine whether the moving party 

has carried its burden of showing that its interpretation of the 

Finding of Facts is consistent with Judge Boldt’s intent.” Id. 

at 771.

Because fishing rights under the relevant treaties 

generally turn on the usual and accustomed fishing grounds 

(“U&A”) of a particular tribe at the relevant time in history, 

the disputes presented to us under Paragraph 25(a)(1) of the 

decree typically involve a disagreement over the meaning of 

Judge Boldt’s findings of fact concerning the historical U&A 

of the relevant tribes. In particular, we have frequently been 

confronted with claims in which one tribe has invoked 

Paragraph 25(a)(1) to obtain an affirmative ruling that a 

competing tribe has not been granted certain fishing rights 

under that decree. 

To the extent that the moving tribe seeks a ruling that 

Judge Boldt’s findings as to a competing tribe’s U&A do not

cover a particular area, the fact that the decree’s text does 

not unambiguously exclude the particular area from the 

competing tribe’s U&A is not the end of the matter. If the 

text of the relevant findings is susceptible to the moving 

party’s interpretation that the competing tribe was excluded 

from the area, the moving party can carry its burden (at step 

two) by showing that there was no evidence before Judge 

Boldt that the competing tribe “fished or traveled through the 

contested areas.” See Upper Skagit Indian Tribe v. 

Suquamish Indian Tribe, 871 F.3d 844, 848 (9th Cir. 2017)

(“Suquamish”) (simplified).
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 21

That characterization of the burden applicable in that 

specific context flows directly from the nature of the 

underlying inquiry. Judge Boldt’s 1974 decree stated that,

for a fishing area to be “usual and accustomed,” the tribe in 

question must have fished in that area on more than an 

“occasional and incidental” basis. Final Decision I, 384 F. 

Supp. at 353, 356. Mere travel through a set of waters was, 

in Judge Boldt’s view, not sufficient to render a body of 

water a “usual and accustomed” fishing place for the 

traveling tribe. Although “[m]arine waters were . . . used as 

thoroughfares for travel by Indians who trolled en route,” 

this sort of “occasional and incidental trolling was not 

considered to make the marine waters traveled thereon the 

usual and accustomed fishing grounds of the transiting 

Indians.” Id. at 353; see also United States v. Lummi Indian 

Tribe, 841 F.2d 317, 320 (9th Cir. 1988) (stating that “travel 

through an area and incidental trolling are not sufficient to 

establish an area as a usual and accustomed fishing ground”). 

Because Judge Boldt must be understood to have followed 

his own announced standards in making his factual findings 

as to the various tribes’ U&As, it follows that, if the record 

contains “no evidence” that the competing tribe “fished or 

traveled through the contested areas,” Suquamish, 871 F.3d 

at 848 (simplified) (emphasis added), in a manner that “was 

more than ‘incidental’ or ‘occasional,’” United States v. 

Muckleshoot Indian Tribe, 235 F.3d 429, 435 (9th Cir. 

2000), then an ambiguous U&A finding concerning that 

competing tribe’s fishing rights simply cannot be construed 

as including those contested areas. In other words, because 

Judge Boldt should not be understood to have made a finding 

that the record could not support under the standards he 

himself articulated, a moving party which carries its specific 

step-two burden under the Muckleshoot framework is
22 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

entitled to a determination under Paragraph 25(a)(1) that the 

competing tribe’s U&A does not extend to the contested 

areas.

Our decision in United States v. Muckleshoot Indian 

Tribe, 235 F.3d 429, illustrates how this two-step inquiry 

works. There, three tribes invoked Paragraph 25(a)(1), 

seeking a determination that the language of “Finding 76” in 

the 1974 decree, which concerned the U&A of the 

Muckleshoot tribe, “does not include any areas outside 

Elliott Bay.” See id. at 431 (emphasis added). The relevant 

language of Finding 76 stated that the Muckleshoot’s U&A 

extended, “secondarily,” to locations “in the saltwater of 

Puget Sound.” Id. (quoting Final Decision I, 384 F. Supp. 

at 367) (emphasis omitted). After evaluating all of the 

relevant record evidence before Judge Boldt, we concluded 

that there was no evidence in the 1974 record “that the 

Muckleshoot’s ancestors had U&A fishing grounds beyond 

Elliott Bay.” Id. at 435. Thus, to the extent that the referent 

of “saltwater of Puget Sound” was ambiguous, the three 

moving tribes had shown that there was no evidence to 

support construing that phrase as extending beyond Elliott 

Bay. Id. We therefore affirmed the district court’s summary 

judgment affirmatively holding that “the Muckleshoot’s 

U&A under Finding 76 was limited to Elliott Bay.” Id. at 

432.

III

Applying this Muckleshoot framework here and 

reviewing de novo, see Tulalip Tribes v. Suquamish Indian 

Tribe, 794 F.3d 1129, 1133 (9th Cir. 2015) (“Tulalip 

Tribes”), we conclude that the district court correctly held 

that the Swinomish, Tulalip, and Upper Skagit carried their 

burden to warrant a ruling, under Paragraph 25(a)(1), that 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 23

Judge Boldt’s “determination of Lummi’s usual and 

accustomed fishing grounds and stations” did not extend to 

the disputed waters at issue here.

A

We have previously held that, as to waters west of 

Whidbey Island, Finding of Fact 46—the paragraph of Judge 

Boldt’s decree determining the scope of the Lummi Nation’s 

historical fishing grounds—is ambiguous, requiring us to 

“examine the record before Judge Boldt to clarify his intent.” 

United States v. Lummi Nation, 876 F.3d 1004, 1009 (9th 

Cir. 2017) (“Lummi III”); see United States v. Lummi Nation, 

763 F.3d 1180, 1187 (9th Cir. 2014) (“Lummi II”); United 

States v. Lummi Indian Tribe, 235 F.3d 443, 449 (9th Cir. 

2000) (“Lummi I”). Considering Finding of Fact 46 in the 

relevant context, see also Sauk-Suiattle, 66 F.4th at 770–71, 

we reaffirm that conclusion today as to the waters east of 

Whidbey Island. 

1

We begin with the decree’s text.

Finding of Fact 45 states: “The Lummis had reef net sites 

on Orcas Island, San Juan Island, Lummi Island and Fidalgo 

Island, and near Point Roberts and Sandy Point. . . . They 

trolled the waters of the San Juan Islands for various species 

of salmon.” Final Decision I, 384 F. Supp. at 360. Finding 

of Fact 14 states that these “Lummi reef net sites in Northern 

Puget Sound,” among others, “are examples of some Indian 

usual and accustomed fishing grounds and stations in marine 

waters.” Id. at 353. The boundaries of “Northern Puget 

Sound” are not defined in the decree. Finding of Fact 46—

the key finding at issue in this case—states: “In addition to 

the reef net locations listed above, the usual and accustomed 
24 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

fishing places of the Lummi Indians at treaty times included 

the marine areas of Northern Puget Sound from the Fraser 

River south to the present environs of Seattle, and 

particularly Bellingham Bay.” Id. at 360. 

Three points are worth noting about this last statement. 

First, if “the marine areas of Northern Puget Sound from the 

Fraser River south to the present environs of Seattle” 

included—as the Lummi argue—every single area of water 

between “the Fraser River” and “the present environs of 

Seattle,” it is not clear why Judge Boldt would have listed

the Lummi “reef net locations” in the San Juan Islands as a

separate, distinct fishing ground. Final Decision I, 384 

F. Supp. at 360. After all, the San Juan Islands—just like the 

separately listed reef net locations in marine waters at “Point 

Roberts,” “Lummi Island,” “Sandy Point,” and “Fidalgo 

Island”—are located between the Fraser River and Seattle. 

Yet Finding of Fact 46 states that “[i]n addition to” their

usual and accustomed fishing places at those locations, the 

Lummi’s usual and accustomed fishing places also included 

“the marine areas of Northern Puget Sound from the Fraser 

River south to the present environs of Seattle.” Id. (emphasis 

added). Where Judge Boldt used separate terms to refer to 

separate bodies of water, this court (naturally) understands 

him to have been referring to separate bodies of water. 

Lummi I, 235 F.3d at 451–52. So too would an ordinary 

reader, who could reasonably conclude that the waters 

around the listed reef net locations—despite their geographic 

position in waters directly between the Fraser River and 

Seattle—must not be part of “the marine areas of Northern 

Puget Sound from the Fraser River south to the present 

environs of Seattle.” Final Decision I, 384 F. Supp. at 360.

But if not all waters between the Fraser River and Seattle are 

included in that general description, which waters are?
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 25

Second, the geographic width of the U&A recognized in 

Finding of Fact 46 is left undefined. More precisely, to the 

extent that the language might arguably be read as referring 

to some sort of path “from” the Fraser River “to” Seattle, the 

general words are unilluminating as to the width of any such 

path. Final Decision I, 384 F. Supp. at 360. Those words 

could be referring to all waters anywhere on the map 

between any portion of the Fraser River and Seattle—a 

usage akin to the phrase “from sea to shining sea.” Finding 

of Fact 46 could also be referring to a narrower nautical path

or paths traced southward “from” the Fraser River, through 

northern Puget Sound, “to” Seattle. The decree itself, 

however, does not explain.

Finally, if Judge Boldt had intended to recognize Lummi 

fishing rights in every single body of water between the 

Fraser River and Seattle, it is not clear why he would have 

used the distinctive operative phrase “the marine areas of 

Northern Puget Sound from the Fraser River south to the 

present environs of Seattle.” If, in other words, Judge Boldt 

really used the term “Northern Puget Sound” to mean all 

waters north of Seattle and south of any portion of the Fraser 

River as the crow flies—as the Lummi argue—Judge Boldt

could simply have said that the Lummi’s usual and 

accustomed fishing grounds were “Northern Puget Sound,”

or he could have used other similarly broad language. Why, 

then, the idiosyncratic phrasing?

2

The answer lies in an expert report concerning the 

history and practices of the Lummi Nation, authored by an 

anthropologist, Dr. Barbara Lane. Judge Boldt relied 

heavily on Dr. Lane’s report, which was entered into the 

1974 trial record as Exhibit “USA-30,” in authoring his 
26 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

findings regarding the Lummi; indeed he cited the report 11

times in the space of five paragraphs. (Judge Boldt also 

extensively cited a second report of Dr. Lane’s, entered into 

evidence as “USA-20,” which more broadly summarized her 

conclusions concerning all “Coast Salish and Nootkan 

speaking peoples residing west of the Cascade Mountains in 

the geographic area” at issue in Final Decision I. Judge 

Boldt cited that broader report at least 35 times in the course 

of drafting the decree.) Judge Boldt praised Dr. Lane’s 

reports as “exceptionally well researched and reported,” 

found their conclusions “established by a preponderance of 

the evidence,” and declared them “authoritative and reliable 

summaries of relevant aspects of Indian life in the case area 

at and prior to the time of the treaties.”9 Final Decision I, 

384 F. Supp. at 350.

Indeed Judge Boldt’s endorsement of Dr. Lane’s 

findings was so thoroughgoing that he incorporated many of 

her findings about the Lummi directly into his decree, often 

with minimal (or no) modification. Here are a few 

examples:

• Dr. Lane: “The single most valuable fish 

resource was undoubtedly the sockeye, which the 

Semiahmoo, Lummi, and Samish were able to 

intercept in the Straits on their annual migration 

from the ocean to the Fraser River.”

9 The “case area” is the area covered by Judge Boldt’s decree: “that 

portion of the State of Washington west of the Cascade Mountains and 

north of the Columbia River drainage area,” including “the American 

portion of the Puget Sound watershed, the watersheds of the Olympic 

Peninsula north of the Grays Harbor watershed, and the offshore waters 

adjacent to those areas.” Final Decision I, 384 F. Supp. at 328.
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 27

o Judge Boldt: “The single most valuable 

fish resource was undoubtedly the sockeye, 

which the Lummis were able to intercept in 

the Straits on the annual migration of the 

sockeye from the ocean to the Fraser 

River.” Final Decision I, 384 F. Supp. at 

360.

• Dr. Lane: “Springs, silvers, and humpback were 

also taken with gill nets and springs were 

harpooned near the mouth of the Nooksack 

River,” and “[s]teelhead were taken by harpoon 

at the mouth of Whatcom Creek and . . . in 

basketry traps.”

o Judge Boldt: “These Indians also took 

spring, silver and humpback salmon and 

steelhead by gill nets and harpoons near the 

mouth of the Nooksack River, and 

steelhead by harpoons and basketry traps 

on Whatcom Creek.” Final Decision I, 384 

F. Supp. at 360.

• Dr. Lane: “When nature did not provide 

optimum conditions, the reefnetters artificially 

created them.”

o Judge Boldt: “When nature did not 

provide optimum reef conditions the 

Indians artificially created them.” Final 

Decision I, 384 F. Supp. at 360.

It is quite clear, in other words, that many of Judge Boldt’s 

findings regarding the Lummi were copied, sometimes 

word-for-word, from Dr. Lane’s expert report. Where Judge 

Boldt borrowed language directly from Dr. Lane’s reports—
28 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

reports he expressly declared “authoritative and reliable”—

we think a rebuttable presumption is warranted that Judge 

Boldt intended to adopt the meaning and scope that that 

language possessed in the reports, and that the parties would 

have shared that understanding at the time of decision. See 

Final Decision I, 384 F. Supp. at 350.

3

That point is crucial to understanding the statement of 

Judge Boldt’s at issue in this case, regarding the Lummi 

Nation’s usual and accustomed fishing areas. Dr. Lane’s 

report on the Lummi covered this topic directly. Under the 

headline “USUAL AND ACCUSTOMED FISHING 

AREAS,” Dr. Lane first outlined what she viewed as the 

Lummi Nation’s “home territory,” which included a set of 

“traditional fishing areas” that “extended from what is now 

the Canadian border south to Anacortes,” on the north side 

of Fidalgo Island. (None of these areas are within the 

disputed waters at issue here.) Dr. Lane then made her only

specific mention of Lummi fishing outside their home 

territory. “In addition to the home territory discussed to this 

point, Lummi 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”

(emphasis added).

That comment concluded Dr. Lane’s findings describing 

the U&A of the Lummi. She then listed a series of numbered 

“CONCLUSIONS” that summarized the contents of the 

report as already described. Conclusion 4, which closely 

tracks the phrasing of the statement at the center of this case, 

is the Conclusion relevant here. In Conclusion 4, Dr. Lane 

summarized her earlier statement about Lummi fishing 

outside the tribe’s home territory. Dr. Lane repeated that in 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 29

addition to their “traditional fisheries” in their home territory 

north of Fidalgo Island, the Lummi also utilized other 

fisheries “from the Fraser River south to the present 

environs of Seattle” (emphasis added). This is, of course, 

precisely the same language Judge Boldt eventually used in 

the decree itself. And Judge Boldt cited, in using those 

words, the precise pages on which those same words appear 

in Dr. Lane’s report. See Final Decision I, 384 F. Supp at 

360 (citing Ex. USA-30, pp. 23–26).

The confusion in this case, we think, can be traced back 

to Dr. Lane’s original finding—namely, that the Lummi 

“visit[ed] fisheries as distant as the Fraser River in the north 

and Puget Sound in the south.” In using that phrase, Dr. 

Lane was merely describing the maximum north-south 

distance that the Lummi traveled to fish. The Lummi argue 

that Dr. Lane’s reference to “Puget Sound in the south” 

refers to the east-of-Whidbey-Island waters disputed in this 

case, but that is wrong. By using the phrase “Puget Sound 

in the south,” Dr. Lane was referring to the waters south of 

Admiralty Inlet, in the vicinity of Seattle. We know that

because, when summarizing the relevant finding in her 

subsequent Conclusion 4, Dr. Lane used “the present 

environs of Seattle” as a synonym for her earlier reference 

to “Puget Sound in the south.” In other words, Dr. Lane’s 

original finding described the farthest two geographic points 

to which the Lummi ever traveled to fish: “Fraser River in 

the north” and “Puget Sound in the south,” i.e., the waters 

close to what is now Seattle. Dr. Lane’s numbered 

Conclusion 4 then summarized her earlier finding, using 

slightly different words but repeating the same substance: 

“Other fisheries in the Straits and bays from the Fraser River 

south to the present environs of Seattle were utilized.” 
30 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

Viewed in this context, Dr. Lane’s report concluded that 

the Lummi used various unspecified fisheries in the waters 

between the Fraser River and Seattle. Consider for clarity a 

parallel sentence with more familiar locations. “Other cities 

in the States and lands from Seattle east to the present 

environs of New York were visited” means that the visitor 

ranged as far as Seattle and New York, and also visited at 

least some other cities in between. It does not mean that the 

visitor spent time in every single city between New York and 

Seattle. Especially given the context of Dr. Lane’s earlier 

finding—which described the Lummi as fishing in locations 

“as distant as” the Fraser River and “Puget Sound in the 

south,” which she used to mean the waters near Seattle—it 

is clear Dr. Lane was not saying that the Lummi fished in 

every single area of water between the Fraser River and 

Seattle. Nor would (indeed, could) Judge Boldt have 

understood her to be saying so. Dr. Lane said simply that, 

outside the Lummi’s home territory, “[o]ther fisheries in the 

Straits and bays from the Fraser River south to the present 

environs of Seattle were utilized.” Dr. Lane’s report did not 

specify where those fisheries were, and she did not provide 

a citation for the conclusion that Lummi fishers ranged as far 

as the Fraser River and Seattle.

4

Judge Boldt’s translation of Dr. Lane’s language into his 

decree magnified, rather than resolved, the confusion. First, 

Judge Boldt directly copied Dr. Lane’s language about 

Lummi fishing grounds outside their historical home 

territory—i.e., that the Lummi had visited various 

unspecified fishing areas in the marine waters “from the 

Fraser River south to the present environs of Seattle.” Final 

Decision I, 384 F. Supp. at 360. Next, Judge Boldt blended 

in Dr. Lane’s separate findings about the Lummi Nation’s 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 31

traditional, home-water fishing grounds in what Judge Boldt 

apparently viewed as “Northern Puget Sound,” including the 

tribe’s historical center of gravity north of Whidbey Island,

near “Bellingham Bay.” Id. Evidently intending to 

emphasize the home-water nature of Bellingham Bay as 

described in Dr. Lane’s report, Judge Boldt stated that the 

Lummi “particularly” fished there. And he concluded by 

adding, at the beginning of the sentence, the phrase “the 

marine areas of Northern Puget Sound.” Id. However, the

phrase “Northern Puget Sound” is not defined in the 1974 

decree. Nor is the term “marine,” which typically appears to 

refer to saltwater, but occasionally seems to connote open 

waters over which long-distance travel would have 

occurred—a usage that here would match the distinction 

Judge Boldt seems to have drawn between “the marine areas 

of Northern Puget Sound” and the saltwater passageways 

between and among the San Juan Islands, where the Lummi 

had reef net locations. See Final Decision I, 384 F. Supp. at 

353 (“Marine waters were also used as thoroughfares for 

travel by Indians who trolled en route,” although “[s]uch 

occasional and incidental trolling was not considered to 

make the marine waters traveled thereon the usual and 

accustomed fishing grounds of the transiting Indians”).

The result is a cobbled-together, patchwork sentence

containing three elements: (1) “the marine areas of Northern 

Puget Sound,” (2) “from the Fraser River south to the present 

environs of Seattle,” and (3) “particularly Bellingham Bay.” 

Final Decision I, 384 F. Supp. at 360. Except for

Bellingham Bay, which is clearly identified as a Lummi 

usual and accustomed fishing ground, the remaining two 

elements provide little clarity. “Northern Puget Sound” has 

no defined boundaries in the decree, so it is difficult to tell 

whether Judge Boldt considered any waters east of Whidbey
32 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

Island to fall within the term’s scope in 1974. Even if he did, 

the unusual remaining term, “from the Fraser River south to 

the present environs of Seattle,” is copied directly from Dr. 

Lane’s report, where it operated as a diffuse reference to a 

set of unidentified fishing waters and plainly did not include 

every single body of water between the Fraser River and 

Seattle. Nor, despite Judge Boldt’s use of directional “from” 

and “to” language, does the decree clarify whether it is 

referring to a particular path of nautical travel from one point 

to the other—much less what that path (or paths) might be.

It is, in short, fundamentally ambiguous—even after 

reading the language of Finding of Fact 46 in light of the 

record evidence before Judge Boldt at the time of decision—

whether Judge Boldt and the parties, in 1974, would have 

understood “the marine areas of Northern Puget Sound from 

the Fraser River south to the present environs of Seattle, and 

particularly Bellingham Bay,” to include any waters east of 

Whidbey Island. 384 F. Supp. at 360. We must—as in all 

three Lummi cases preceding us—turn to further 

examination of the record evidence before Judge Boldt.

B

We proceed to step two of the Muckleshoot framework. 

As we have noted, here, the Swinomish, Tulalip, and Upper 

Skagit moved for a determination, under Paragraph 25(a)(1), 

that the Lummi’s U&A, as described in Finding of Fact 46 

of the decree, does not include the disputed waters east of 

Whidbey Island. These tribes’ burden under step two, 

accordingly, is to show that there was no evidence in the 

record before Judge Boldt of historical Lummi fishing in the 

disputed waters beyond what would be merely incidental or 

occasional. Sauk-Suiattle, 66 F.4th at 771, 774; Suquamish, 

871 F.3d at 848; Tulalip Tribes, 794 F.3d at 1133. We think 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 33

the moving parties have met that burden here. Indeed, there 

is no record evidence that the Lummi historically fished in 

waters east of Whidbey Island.

1

The Lummi point to a few excerpts from the 1974 trial 

record, but all of them are either irrelevant or entirely 

speculative. 

First, the Lummi point out that Dr. Lane’s report 

contained a map listing a lone Lummi reef net site off the 

western side of Fidalgo Island:
34 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

This reef net site is plainly not within the disputed eastof-Whidbey-Island waters, and we consequently see nothing 

to be gained from it. 

Second, the Lummi point to an exhibit in the 1974 trial 

record—viz., Exhibit PL-94w. Exhibit PL-94w is a 

confusingly worded affidavit from the late 19th century, 

submitted as part of the case that eventually became United 

States v. Alaska Packers’ Ass’n, 79 F. 152 (C.C.D. Wash. 

1897). That case involved “a suit by the United States and 

certain Indians of the Lummi tribe for an injunction against 

the Alaska Packers’ Association . . . to protect the Lummi 

Indians in the right to take salmon, by their ancient and 

primitive means of fishing, in the waters adjacent to Point 

Roberts,” an area far to the north of the waters disputed here. 

Id. at 153 (emphasis added). In June 1895, B.N. 

McDonough, a 60-year-old “Indian Trader” who had lived 

on or near the Lummi Reservation since 1871, submitted an 

affidavit in the case. McDonough stated that “during all the 

time I have known these [I]ndians they have fished at all 

points in the lower Sound and wherever the run of fish was 

greatest and the salmon were most easily taken including 

Point Roberts.” McDonough did not explain what he meant, 

in 1895, by “the lower Sound,” and the only specific 

geographic reference he made in conjunction with the term 

was to Point Roberts, some 40 miles to the north of the 

waters at issue in this case. McDonough also stated that the 

Lummi “have always fished at all the usual fishing places 

within many miles of their Reservation including Point 

Roberts and Vill[a]ge Point.” Again, McDonough did not 

explain what these “usual fishing places” were, and Village 

Point is located on Lummi Island in Lummi home waters, far 

to the north of Whidbey and Fidalgo Islands. (Dr. Lane’s 

summary report, in fact, described these two locations quite 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 35

precisely: “The principal fisheries of the Lummi included the 

reef-net locations for sockeye at Point Roberts, Village 

Point, off the east coast of San Juan Island as well as other 

locations in the San Juan Islands.”) McDonough’s affidavit 

is, in short, no evidence at all of Lummi fishing east of 

Whidbey Island and south of Fidalgo Island.

Third, the Lummi point to a single sentence from the 

1973 trial testimony of a Lummi tribal elder named Forrest 

“Dutch” Kinley. Kinley was born around 1913, nearly six 

decades after the Treaty of Point Elliott. He had worked in 

fishing since he was around 12 years old—sometime in the 

early 1920s—and at one point served as chairman and a 

member of the Lummi tribal council. Kinley testified 

extensively on various topics regarding the Lummi tribe; 

indeed, the transcript of his testimony runs more than 90 

pages. The Lummi point to a single page of this extensive 

transcript where, on redirect examination, Kinley testified 

that “I have fished in the Straits, I have fished in Whidby 

Island south and into the Canadian border” (emphasis 

added). When asked whether this and other fishing was “as 

a Lummi Indian at your usual and accustomed places,” 

Kinley answered “Yes.”

This fragment of transcript is patently insufficient to 

show historical Lummi fishing rights east of Whidbey 

Island, for at least two reasons. First, the parties agree that 

Judge Boldt did not cite Kinley’s testimony at all in Finding 

of Fact 46. There is consequently no way to know, unlike in 

the case of Dr. Lane’s reports, what Judge Boldt thought 

about Kinley’s testimony (if he thought about it at all). 

Second, there is no way to know what Kinley meant by his 

confusing statement that he had fished “in Whidby Island 

south.” Kinley could have meant, quite uncontroversially, 

that he fished south of Whidbey Island in the “environs of 
36 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

Seattle,” the maximum range point of Lummi fishing 

described in Dr. Lane’s report and in Judge Boldt’s decree. 

Kinley could also have meant that he fished somewhere near 

the western coast of Whidbey Island, “south” of the Lummi 

reefnets in the San Juan Islands. There is absolutely no 

evidence that by fishing “in Whidby Island south,” Kinley 

meant fishing in the waters east of Whidbey Island. Any 

inference to the contrary is entirely speculative.

Finally, the Lummi rely on an extraordinarily thin chain 

of inference from two statements by Dr. Lane regarding 

Lummi trade practices. Dr. Lane wrote that the Lummi 

“apparently imported various fibers and grasses from upriver 

Skagit and flint from Puget Sound.” She also stated that the 

“imports” of the Semiahmoo people, whom Judge Boldt 

described as “subsumed” within the Lummi for purposes of 

the Treaty (Final Decision I, 384 F. Supp. at 360), included 

“[f]lint from Puget Sound and woven root hats from the West 

Coast.” From these two isolated statements, the Lummi 

draw the following chain of inferences: (1) the Lummi 

traded fish and clams for “woven root hats” and “imported 

various fibers and grasses from upriver Skagit”; 

(2) “[b]ecause the Skagit River empties into waters disputed 

here,” the Lummi must have traveled to the area surrounding 

the mouth of the Skagit River, on “the mainland shore on the 

eastern side of the disputed waters,” to obtain the 

aforementioned “woven root hats” and “various fibers and 

grasses”; and (3) this travel, in turn, “confirms Lummi’s 

travel (and fishing) throughout” the disputed waters. This 

speculative line of reasoning is unavailing.

For one thing, Dr. Lane describes the Lummi as having 

“imported” the land-based goods in question. This 

importation process could have taken the form of Lummi 

traders traveling to visit the Skagit; it could also have 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 37

occurred via Skagit traders traveling to visit the Lummi; or 

trade between the two areas could have occurred via 

middlemen from neither tribe. There is simply no way to 

know on this record. Second, even if the Lummi did trade 

by traveling to the mouth of the Skagit River, there is no 

evidence in the record that, upon their (hypothetical) arrival, 

the Lummi ever fished there—much less for any period of 

time sufficient to create “usual and accustomed” fishing 

grounds. See Final Decision I, 384 F. Supp. at 353, 356 

(fishing must have been more than “occasional and 

incidental” to qualify an area as a “usual and accustomed” 

fishing ground). The Lummi’s chain of inferences is entirely 

speculative and ungrounded in the record, as the district 

court in this case correctly observed.

In sum, there is no evidence in the record before Judge 

Boldt that the Lummi ever held usual and accustomed 

fishing grounds in waters east of Whidbey Island and south 

of Fidalgo Island. Nor did Judge Boldt mention, anywhere 

in the text of his description of historical Lummi fishing 

waters, the specific waters east of Whidbey Island at issue in 

this case. We thus conclude that, under the 1974 decree, the 

Lummi have no usual and accustomed fishing rights in those 

waters.

2

The record evidence cited by Judge Boldt in Finding of 

Fact 46 suggests, if anything, the opposite: that Lummi 

fishing was confined to areas west and, in particular, north 

of Whidbey Island.

Exhibit PL-94e is another 1895 affidavit in the Alaska 

Packers case, this time from a man named George 

Sknoughton. Sknoughton stated that he was a Lummi Indian

who was 60 years old at the time of the affidavit; he was 
38 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

therefore born around 1835, and would have been 

approximately 20 years old at the time of the Treaty of Point 

Elliott. Sknoughton explained that the Lummi at treaty times 

“got most of their fish at Point Roberts,” a location some 40

miles to the north of the disputed waters here, and that “at no 

other place in the waters near the reservation did the sockeye 

salmon run [in] such large quantities or were they so easily 

caught.”

Exhibit PL-94u is an 1895 affidavit from Harry 

Sewalton, who identified himself as a 65-year-old “member 

of the Lummi Tribe of Indians.” According to Sewalton, 

“the main part of the food supply of the Lummi Indians since 

my boyhood” was taken at the reef adjacent to Point Roberts. 

Sewalton explained that “Point Roberts reef and the Reef at 

Vill[a]ge Point on Lummi Island . . . are the only two reefs 

in the waters of said County or in the Lower Sound upon 

which the said Lummi Indians can take salmon with hand or 

lift nets” (emphasis added).

Exhibit G-26 is a section of an untitled and undated 

report by an unknown author. The report states that “[t]he 

area claimed by the Indians who designate themselves as the 

Lummi Tribe of Indians and the San Juan Tribe of Indians 

includes the sites of autonomous Indian villages along the 

coastal region north of Puget Sound proper, around 

Bellingham, Lummi and Birch Bays, and on some of the 

islands of the San Juan Archipelago” (emphasis added). 

“Settlement of the northern area” inhabited by these Indians, 

according to the author, differed considerably from that in 

the “southern part of the basin” where “Seattle, Tacoma, and 

Olympia” were located.

Finally, we note that in spring 1973, the Washington 

Reef Net Owners Association served interrogatories 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 39

requesting the Lummi Nation to identify “in full all locations

which are claimed to be its ‘usual and accustomed fishing 

places and stations within and contiguous to the western 

portion of the State of Washington’” (emphasis added). The 

Lummi’s answer repeated verbatim Dr. Lane’s statement 

that “[t]he traditional fishing areas” extended “from what is 

now the Canadian border south to Anacortes”; the Lummi 

then cited a series of locations drawn directly from Dr. 

Lane’s reports. These included Haro and Rosario Straits,

“the salt waters contiguous to the San Juan Islands,” Point 

Roberts, Lummi Island, Fidalgo Island, Birch Bay, Village 

Point, Cherry Point, and various reef-net locations in the San 

Juan Islands. These are essentially the same areas identified 

by Dr. Lane in her description and map of Lummi fishing 

locations—which makes perfect sense, because the Lummi 

specifically identified Dr. Lane as the source of their 

information regarding historical reef-net fishing. None of 

the areas the Lummi identified in 1973 are east of Whidbey

Island; indeed, none are remotely near the “present environs 

of Seattle.” The Lummi did state that “[t]here were, in 

addition, other important fisheries,” but the Lummi did not 

name any of them, so that general statement is of no use. We 

find it telling that, asked directly to identify “in full all 

locations” claimed to be their “usual and accustomed” 

fishing grounds in 1973, the Lummi mentioned no fishing 

locations east of Whidbey Island and south of Fidalgo Island. 

The Lummi had the opportunity to claim such locations at 

trial and did not.
40 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

C

Our precedent is in accord with these conclusions.

1

The most on-point case, and one involving two of the 

same bodies of water at issue here, is Upper Skagit Indian 

Tribe v. Washington, 590 F.3d 1020 (9th Cir. 2010) (“Upper 

Skagit”). That case involved a dispute between the Upper 

Skagit and the Suquamish as to whether Saratoga Passage 

and Skagit Bay—two of the bodies of water east of Whidbey 

Island at issue here—fell within the scope of yet another of 

Judge Boldt’s vaguely worded classifications: “the marine 

waters of Puget Sound from the northern tip of Vashon 

Island to the Fraser River including Haro and Rosario Straits, 

the streams draining into the western side of this portion of 

Puget Sound and also Hood Canal.” Id. at 1023 (quoting 

Final Decision I, 384 F. Supp. at 1049). As in this case, the 

waters at issue in Upper Skagit were east of Whidbey Island, 

and the statement of Judge Boldt’s at issue in the case

concerned “the marine waters of Puget Sound” between a 

southern anchor point and the Fraser River. (There, the 

southern anchor point was Vashon Island, which lies directly 

to the southwest of Seattle, the anchor point in this case. We 

see no relevant difference between these two anchor points;

both are located due south of the disputed east-of-WhidbeyIsland waters.) 

Faced with a comparable (and equally vague) description 

of “the marine waters of Puget Sound” between a southern 

anchor point and “the Fraser River,” the Upper Skagit court 

turned (just as we turn) to the record evidence before Judge 

Boldt. The Upper Skagit court found dispositive the fact that 

“[t]here is no evidence in the record before Judge Boldt that 

the Suquamish fished or traveled in the waters on the eastern 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 41

side of Whidbey Island, particularly in Saratoga Passage or 

Skagit Bay.” 590 F.3d at 1025. (The same, as we have 

explained, is true of the Lummi in this case.) Moreover, 

“[a]lthough Lane’s Report showed that several areas on the 

west shores of Area Four comprised Suquamish’s onreservation territory and fishing locations, there was no 

evidence from Lane or otherwise that the east shores of Area 

Four, as well as Skagit Bay and Saratoga Passage,” were 

included. Id. (emphasis added). (Much the same is, as we 

have explained, true here: Dr. Lane’s report contained a map 

showing a Lummi fishing site on the west shores of Fidalgo

Island, but none on the eastern shores of the disputed 

waters.) Finally, when Judge Boldt “intended to include an 

area, it was specifically named”; thus, the fact that “Judge 

Boldt neglected to include Skagit Bay and Saratoga Passage 

in the Suquamish’s U&A supports our conclusion that he did 

not intend for them to be included.” Id. (The same is again 

true in this case; the fact that Judge Boldt named three areas 

outside the Whidbey-Fidalgo Island chain—the San Juan 

Islands, Bellingham Bay, and Seattle—but did not name any 

waters east of Whidbey Island, suggests that he did not 

intend to include them.) Ultimately, the Upper Skagit court 

concluded, the Suquamish U&A did not include the

contested waters east of Whidbey Island. Id. at 1026. We 

reach precisely the same conclusion, regarding an analogous

U&A description, in this case.

The Lummi attempt to distinguish Upper Skagit on the 

ground that the court referenced a 1975 bench ruling from 

Judge Boldt, and that no such bench ruling is present in the 

record of this case. We see no legally relevant distinction. 

The Upper Skagit court merely noted that Judge Boldt’s 

ruling from the bench further confirmed the absence of any 

record evidence of tribal fishing by the Suquamish in the 
42 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

disputed east-of-Whidbey-Island waters. 590 F.3d at 1025. 

We conclude that there is a similar lack of record evidence 

here.

If anything, Upper Skagit is the harder case. There, 

Judge Boldt’s description was not limited to the undefined 

area of “northern” Puget Sound, as it is here; he instead 

described the Suquamish U&A as simply including, without 

qualification, “the marine waters of Puget Sound.” 590 F.3d 

at 1023. Nonetheless, we declined to read into that language, 

in the absence of any record evidence, an inference that 

waters east of Whidbey Island were included. Id. at 1026. 

We reach the same conclusion here, and on easier facts. As 

the district court in this case correctly observed, if 

“Suquamish’s U&A was determined to be ambiguous as to 

whether it included Skagit Bay and Saratoga Passage,” then 

there is “no reason that Lummi’s more restrictive U&A 

should unambiguously include the Disputed Waters”

(emphasis altered).

2

Our 2017 decision in Lummi III, 876 F.3d 1004, is 

likewise in accord. In that case, we “examine[d] the record 

before Judge Boldt to clarify his intent” regarding a 

particular “nautical path” traced “from the San Juan Islands 

to Seattle” in Lummi I, 235 F.3d at 452. See Lummi III, 876 

F.3d at 1009–10. We concluded that Judge Boldt had meant 

to include waters along that “nautical path” in the Lummi’s 

usual and accustomed fishing territory. Id. at 1009–10

(citation omitted). That nautical path does not cut through 

any waters east of Whidbey Island, so neither Lummi I nor 

Lummi III governs the waters at issue in this case. 

The Lummi nonetheless urge us to read Lummi III to 

stand for the broad proposition that a court may infer Lummi 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 43

fishing rights in any area of Puget Sound between the Fraser 

River and Seattle through which the Lummi might, at some 

point, have traveled. We have never held that, and we 

decline to do so now. And for good reason: that limitless 

holding would be inconsistent with both the text of the 

decree and well-established precedent. 

Again, Judge Boldt’s decree clearly states that, although 

“[m]arine waters were . . . used as thoroughfares for travel 

by Indians who trolled en route,” this sort of “occasional and 

incidental trolling was not considered to make the marine 

waters traveled thereon the usual and accustomed fishing 

grounds of the transiting Indians.” 384 F. Supp. at 353 

(emphasis added). Judge Boldt plainly did not believe that 

the possibility of travel in disputed waters was sufficient to 

support a finding of U&A fishing there. He stated precisely 

the opposite. Accordingly, we cannot, when reading

ambiguous language in the decree, understand Judge Boldt 

to have violated his own cardinal principle for discerning 

usual and accustomed fishing grounds (i.e., by recognizing

fishing rights for the Lummi in waters east of Whidbey

Island, where, as we have explained, there is no record 

evidence that such fishing ever occurred). See Suquamish, 

871 F.3d at 848; Tulalip Tribes, 794 F.3d at 1133; see also 

Sauk-Suiattle, 66 F.4th at 771, 774. Since we have thrice 

concluded (today makes four) that Judge Boldt’s vague 

description of the Lummi’s U&A is ambiguous, that same 

admonition applies here and precludes the Lummi’s 

sweeping argument. See Lummi III, 876 F.3d at 1008–09; 

Lummi II, 763 F.3d at 1187; Lummi I, 235 F.3d at 449.

The Lummi’s limitless reading of Lummi III suffers from 

an additional flaw—namely, that it would render Lummi III

directly inconsistent with Upper Skagit, 590 F.3d 1020, in 

which we declined to infer fishing rights east of Whidbey
44 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

Island from materially identical language in another of Judge 

Boldt’s U&A descriptions. Id. at 1023, 1026. As we have 

said, the two cases are, properly understood, perfectly 

consistent. Lummi III concluded, after “examin[ing] the 

record before Judge Boldt to clarify his intent,” that Judge 

Boldt had meant to include waters along a specific west-ofWhidbey-Island “nautical path” in the Lummi’s historical 

fishing territory. 876 F.3d at 1009–10. Upper Skagit 

concluded, after engaging in the same sort of inquiry, that 

Judge Boldt had not meant to include certain east-ofWhidbey-Island waters in the Suquamish’s historical fishing 

territory. 590 F.3d at 1023, 1026. We apply in this case the 

same standards we applied in Lummi III and Upper Skagit. 

We have “examine[d] the record before Judge Boldt to 

clarify his intent” regarding a set of waters as to which the 

decree is ambiguous. Lummi III, 876 F.3d at 1009. Because

there is no evidence in that record of historical Lummi 

fishing east of Whidbey Island, we decline to read the decree 

to grant the Lummi fishing rights east of Whidbey Island. 

See Sauk-Suiattle, 66 F.4th at 771, 774; Suquamish, 871 F.3d 

at 848; Tulalip Tribes, 794 F.3d at 1133.

IV

The remainder of the dispute before us is easily resolved. 

The S’Klallam Tribe has filed a cross-appeal for the sole 

purpose of objecting to what it views as “damaging and 

erroneously broad statements” in the district court’s 

summary judgment order that, in the S’Klallam’s view, 

appear to suggest that many Indian tribes fished in waters 

west of Whidbey Island, where the S’Klallam claim fishing 

interests. Specifically, the S’Klallam express concern about 

two sentences of the “current language in the district court 

decision”: first, the district court’s statement that “the Ninth 

Circuit . . . previously determined that the waters west of 
SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION 45

Whidbey Island served as the primary thoroughfare for tribes 

traveling between the Fraser River and the environs of 

Seattle,” and second, the district court’s statement that these 

waters were “the main north-south thoroughfare” for tribes 

transiting through Puget Sound en route to Seattle. In the 

S’Klallam’s view, this language incorrectly implies that 

“other tribes,” in addition to the Lummi, now have leeway 

to “also claim the western route as their primary route” for 

fishing and travel (emphasis added). The S’Klallam’s 

concern appears to be that an unknown number of other 

tribes may seize on the district court’s language to attempt 

to justify increased fishing west of Whidbey Island, 

potentially leading to new incursions upon the “S’Klallam 

U&A on the west side of Whidbey Island.” The S’Klallam 

ask us to make “modifications to the district court’s order”

in response; in other words, they request that we delete (or 

change the phrasing of) the passages to which the S’Klallam 

object. The S’Klallam take no position, however, on 

whether we should affirm or reverse the underlying 

judgment in the dispute between the Lummi and the 

Swinomish, Tulalip, and Upper Skagit; indeed, they concede 

that their desired modifications to the district court’s order 

“may or may not reverse the outcome.”

Generally speaking, a litigant may “appeal only if the 

judgment gives him less relief than he considers himself 

entitled to”; he “cannot appeal a judgment merely because 

there are passages in the court’s opinion that displease him,”

even if those passages may “come back to haunt him in a 

future case.” Abbs v. Sullivan, 963 F.2d 918, 924 (7th Cir. 

1992). In any event, we have already concluded, in the 

ordinary course of deciding the dispute between the Lummi 

and the Swinomish, Tulalip, and Upper Skagit, that neither 

Lummi III nor Upper Skagit stands for the proposition that 
46 SWINOMISH INDIAN TRIBAL CMTY. V. LUMMI NATION

all tribes (indeed, any tribe besides the Lummi) traveled and 

fished west of Whidbey Island. (The district court explained 

much the same in its order denying reconsideration.) Nor, 

as we have just explained, do our cases stand for the 

proposition that the mere possibility of travel through 

disputed waters is sufficient to support a grant of U&A rights

there—a principle Judge Boldt directly rejected and we

likewise have never accepted. Having already clarified both 

points in the S’Klallam’s favor in the ordinary course of 

disposing of the Lummi’s appeal, we consider the 

S’Klallam’s appeal moot.

We decline to address the parties’ dispute regarding 

whether the Lummi may initiate a future subproceeding 

under Paragraph 25(a)(6), which addresses a separate basis 

for jurisdiction not presented to the district court in this case. 

Cf. Muckleshoot Indian Tribe v. Tulalip Tribes, 944 F.3d 

1179 (9th Cir. 2019). We do not understand that question to 

have been resolved by the district court and we decline to 

address it in the first instance on appeal. Merritt v. 

Countrywide Fin. Corp., 759 F.3d 1023, 1035 (9th Cir. 

2014).

V

The district court’s grant of summary judgment to the 

Swinomish, Tulalip, and Upper Skagit is AFFIRMED. The 

S’Klallam’s cross-appeal of the district court’s grant of 

summary judgment is DISMISSED AS MOOT. The 

S’Klallam’s appeal of the district court’s denial of the 

S’Klallam’s motion for reconsideration is likewise 

DISMISSED AS MOOT.