PETITION FORNATION; NISQUALLY INDIAN TRIBE; REHEARING ANDJAMESTOWN TRIBE; LOWER ELWHA REJECTINGKLALLAM TRIBE; PORT GAMBLE SUGGESTIONBANDS; SKOKOISH TRIBE; SAUK- FOR REHEARINGSUIATTLE TRIBE; STILLAGUAMISH EN BANC ANDTRIBE, AMENDEDPlaintiffs-Appellees, OPINIONv.STATE OF WASHINGTON,Defendant-Appellant.UNITED STATES OF AMERICA;MUCKLESHOOT TRIBE; NOOKSACK;UPPER SKAGIT; SQUAXIN ISLAND;LUMMI INDIAN TRIBE; MAKAHTRIBE; TULALIP TRIBE; SWINOMISHINDIAN TRIBAL COMMUNITY;PUYALLUP TRIBE; QUILEUTE INDIANTRIBE; SUQUAMISH TRIBE; HOHINDIAN TRIBE; QUINAULT INDIANNATION; CONFEDERATED TRIBES &BANDS OF THE YAKIMA INDIANNATION; NISQUALLY INDIAN TRIBE;JAMESTOWN TRIBE; LOWER ELWHAKLALLAM TRIBE; PORT GAMBLEBANDS; SKOKOISH TRIBE; SAUK- No. 96-35082SUIATTLE TRIBE; STILLAGUAMISH D.C. No.TRIBE, CV-89-00003-ERPlaintiffs-Appellees,v.STATE OF WASHINGTON, et al.,Defendants,and26 UPLAND AND TIDELAND PRIVATEPROPERTY OWNERS, (Dan Buehler,Robert L. Davis, Bruce I. Fielding,Arthur J. Gerdes, Joe Hoots,Keith C. Huetson, CommanderJ. C. James, Richard Sayre Koch,Elaine C. Lefler, Joan Lemonds-Roush, John S. Lewis, Steven L.Luke, Edward R. McMillan,Robert F. Newman, Mark A.Nysether, Arthur I. Price, Ray D.Randall, Cynthia Ramussen,Robert G. Shanks, AxelStrakeljahn, Leana Tracy, StuartW. Turner, George B. Usnick,Lee S. Vincent, Joan Walker andWilliam E. Whitney, Jr.),Defendants-intervenors-Appellants.UNITED STATES OF AMERICA, et al.,;MUCKLESHOOT TRIBE; NOOKSACK;UPPER SKAGIT; SQUAXIN ISLAND;LUMMI INDIAN TRIBE; MAKAHTRIBE; TULALIP TRIBE; SWINOMISHINDIAN TRIBAL COMMUNITY;PUYALLUP TRIBE; QUILEUTE INDIANTRIBE; SUQUAMISH TRIBE; HOHINDIAN TRIBE; QUINAULT INDIAN No. 96-35142NATION; CONFEDERATED TRIBES & D.C. No.BANDS OF THE YAKIMA INDIAN CV-89-00003-ERNATION; NISQUALLY INDIAN TRIBE;JAMESTOWN TRIBE; LOWER ELWHAKLALLAMTRIBE; PORT GAMBLEBANDS; SKOKOISH TRIBE; SAUK-SUIATTLETRIBE; STILLAGUAMISHTRIBE,Plaintiffs-Appellees,v.STATE OF WASHINGTON, et al.,Defendants,andJAMES HADLEY; JAMES CARTER;ANN CARTER; CHARMOND ADKINS;LARRY ALEXANDER; SHIRLEEALEXANDER; GRACE BOYD; PIERCEDAVIS; ROSEMARY DUNCAN; MAYDAVIS; JAMES C. JOHNSTON; SARAHJOHNSTON; W. K. KIRCH; JO ANNKIRCH; DAVID MITCHELL; LOUISNAWROT, JR.; BOON HO WOO;HAROLD BAUER; BILLIE BAUER;WILLIAM CHASE; FRANCES FELLOWS;GEORGE GRADER; EARLHUNSPERGER; MILLICENTHUNSPERGER; EDWARD KRENZ;ELEANOR KRENZ; H. J. MERRICK;MOSS GORDON; MARGARET MOSS;SEWALL REYNOLDS; EMMAREYNOLDS; JOHN RIACH; ALVAHAZEL ROBB; IRENE SMITH;PROVIDENCE WORLEY,Defendants-Intervenors-Appellants.UNITED STATES OF AMERICA, et al.,Plaintiff,andLUMMI TRIBE; MUCKLESHOOT TRIBE;NOOKSACK; UPPER SKAGIT; SQUAXINISLAND; MAKAH TRIBE; SWINOMISHINDIAN TRIBAL COMMUNITY; TULALIPTRIBE; PUYALLUP TRIBE; QUILEUTEINDIAN TRIBE; HOH INDIAN TRIBE;SUQUAMISH TRIBE; NISQUALLYINDIAN TRIBE; JAMESTOWN TRIBE;LOWER ELWHA KLALLAM TRIBE; No. 96-35196PORT GAMBLE BANDS; SKOKOISH D.C. No.TRIBE; SAUK-SUIATTLE TRIBE; CV-89-00003-ERSTILLAGUAMISH TRIBE,Plaintiffs-Intervenors-Appellants,andQUINAULT INDIAN NATION;CONFEDERATED TRIBES & BANDS OFTHE YAKIMA INDIAN NATION,Plaintiffs-Intervenors,v.STATE OF WASHINGTON, et al.,Defendants-Appellees.UNITED STATES OF AMERICA, et al.,Plaintiff-Appellant,andMUCKLESHOOT TRIBE; NOOKSACK;UPPER SKAGIT; SQUAXIN ISLAND;LUMMI INDIAN TRIBE; MAKAHTRIBE; TULALIP TRIBE; SWINOMISHINDIAN TRIBAL COMMUNITY;PUYALLUP TRIBE; QUILEUTE INDIANTRIBE; HOH INDIAN TRIBE; No. 96-35200SUQUAMISH TRIBE; QUINAULT INDIANNATION; CONFEDERATED TRIBES & D.C. No.BANDS OF THE YAKIMA INDIAN CV-89-00003-ERNATION; NISQUALLY INDIAN TRIBE;JAMESTOWN TRIBE; LOWER ELWHAKLALLAM TRIBE; PORT GAMBLEBANDS; SKOKOISH TRIBE; SAUK-SUIATTLE TRIBE; STILLAGUAMISHTRIBE,Plaintiffs-Intervenors,v.STATE OF WASHINGTON, et al.,Defendant-Appellee.UNITED STATES OF AMERICA,Plaintiffs-Appellees,andLUMMI INDIAN TRIBE; MUCKLESHOOTTRIBE; NOOKSACK; UPPER SKAGIT;SQUAXIN ISLAND; MAKAH TRIBE;SWINOMISH INDIAN TRIBALCOMMUNITY; TULALIP TRIBE;PUYALLUP TRIBE; QUILEUTE INDIANTRIBE; HOH INDIAN TRIBE;SUQUAMISH TRIBE; QUINAULT INDIANNATION; CONFEDERATED TRIBES &BANDS OF THE YAKIMA INDIAN No. 96-35223NATION; NISQUALLY INDIAN TRIBE;JAMESTOWN TRIBE; LOWER ELWHA D.C. No.KLALLAM TRIBE; PORT GAMBLE CV-89-00003-ERBANDS; SKOKOISH TRIBE; SAUK-SUIATTLE TRIBE; STILLAGUAMISHTRIBE,Plaintiffs-Intervenors-Appellees,v.STATE OF WASHINGTON, et al.,Defendant,andPUGET SOUND SHELLFISH GROWERS,Defendants-Intervenors-Appellants.Appeals from the United States District Courtfor the Western District of WashingtonEdward Rafeedie, District Judge, PresidingArgued and SubmittedMay 5, 1997--Seattle, WashingtonFiled January 28, 1998Amended September 25, 1998Before: Donald P. Lay,* Robert R. Beezer andStephen S. Trott, Circuit Judges.Opinion by Judge Trott; Concurrence by Judge Beezer
______________________COUNSEL Phillip E. Katzen (Argued) and Allen H. Sanders, ColumbiaLegal Services, Seattle, Washington, for the plaintiff-appelleecross-appellant Jamestown, Lower Elwha and Port GambleBands of S'Klallams, Nisqually, Nooksack, Sauk-Suiattle,Skokomish, Squaxin Island, Stillaguamish and Upper SkagitTribes, Indian Tribes.Evelyn S. Ying (Argued), Ann C. Juliano, Martin W. Matzen,Peter C. Monson, Attorneys, United States Department of Jus-tice, Environment & Natural Resources Division, Washing-ton, D.C., for appellee/cross-appellant United States.Jay D. Geck (Argued), Fronda Woods, and Robert C. Har-greaves, Assistant Attorneys General, John W. Hough, SeniorAssistant Attorney General, Attorney General's Office, Stateof Washington, Olympia, Washington, for the defendants-appellants cross-appellees.James M. Johnson (Argued), Olympia, Washington, for inter-venor defendant-appellant, 26 Tideland and Upland PrivateProperty Owners ("UPOW").Howard M. Goodfriend (Argued) and Malcolm L. Edwards,Edwards, Sieh, Hathaway, Smith & Goodfriend, Seattle,Washington, for Private Owners.Michael Himes (Argued) and Albert Gidari, Jr., Perkins Coie,Seattle, Washington, for intervenors defendants-appellants,Puget Sound Shellfish Growers.Eric Richter, Skeel Henke, Evenson & Roberts, Seattle,Washington, for intervenor defendant-appellant Adkins, et. al.Mason D. Morisset, Seattle, Washington, for the TulalipTribes.Riyaz A. Kanji, Williams and Connolly, Washington, D.C.,for plaintiffs-appellees cross-appellants Jamestown, LowerElwha and Port Gamble Bands of S'Klallams, Nisqually,Nooksack, Sauk-Suiattle, Skokomish, Squaxin Island, Stil-laguamish and Upper Skagit Tribes, Indian Tribes.John Sledd, and Mary Linda Pearson, for the SuquamishTribe.Daniel A. Raas and Harry L. Johnsen, for the Lummi Tribe.Richard Berley, John Arum, Mark Slonim, for the MakahTribe.Bill Tobin and Christina Berg, for the Nisqually Tribe.Annette M. Klapstein, John Howard Bell, and Debra S.O'Gara, for the Puyallup Tribe.Kevin R. Lyon and Ronald Whitener, for the Squaxin IslandTribe.Robert L. Otsea, for the Muckleshoot Tribe.Kathryn Nelson and Amy C. Lewis, co-counsel for the PortGamble, Lower Elwha and Jamestown Bands of S'Klallamsand the Skokomish Tribe.Leslie Barnhart, Lori Salzarulo, and Ruth Kennedy for theQuileute Tribe.Nettie Alvarez and Richard Ralston, for the Hoh Tribe.Jeffrey Jon Bode, co-counsel for the Nooksack Tribe.Edward G. Maloney, co-counsel for the Upper Skagit Tribe.Harold Chesnin, co-counsel for the Upper Skagit Tribe.Allan E. Olson, for the Swinomish Indian Community.Daniel W. Wyckoff, Olympia, Washington, Tom D. Tobin,Winner, South Dakota, for amicus curiae Inner Sound CrabAssociation and Washington Dungeness Crab Fishermen'sAssociation.Stephanie L. Striffler, Assistant Attorney General, Salem,Oregon, for amicus curiae State of Oregon.Nancie Marzulla, Washington, D.C., for amicus curiaeDefenders of Property Rights.Robin Rivett, Sacramento California, John M. Groen, Belle-vue, Washington, for amicus curiae Pacific Legal Foundation.Toby Thaler, Seattle, Washington, for amicus curiae Wash-ington Environmental Council.
_____________________________ORDER The Opinion filed January 28, 1998, slip op. 783, andappearing at 135 F.3d 618 (9th Cir. 1998), is amended as fol-lows:1. At slip op. 829, last sentence of the first full paragraph;135 F.3d at 640, first full sentence on the page beginning with"All Grower beds . . ."; delete the sentence and replace itwith, "The other Grower beds will be subject to the allocationanalysis below."2. At slip op. 830, first full paragraph; 135 F.3d at 640,third full paragraph beginning with "We therefore apply . . . ";delete the entire paragraph and replace it with a new para-graph and revised footnote as follows:"We therefore apply the following analysis to Grower bedswhere the Growers, or their predecessors, began theirenhancement efforts on a natural bed. For such natural beds,the Growers shall demonstrate what portion of their harvest isdue to their labor, as opposed to what portion would existabsent the Growers' enhancement. See Shellfish II., 898 F.Supp. at 1462. For such enhanced natural beds, the Tribesshall be entitled to fifty percent of the pre-enhanced sustain-able shellfish production from those beds.12/ Of course, thisallocation analysis does not apply to artificial beds, that is, toGrower beds that did not support a sustainable commercialdensity of shellfish prior to cultivation. As the Tribes haveacknowledged, the Tribes have no right to harvest such beds.898 F. Supp. at 1460-61." 12/ For example, if ten clams per square foot were a density sufficient to support a commercial liveli- hood at the time that enhancement began, and if a 100 square foot Grower's bed yielded ten clams per square foot prior to the Grower's efforts to enhance the output (1,000 clams), and that same bed now produces fifty clams per square foot as a result of the Grower's labor (5,000 clams), the Tribes would be entitled to fifty percent of the 1,000 clams or 500 clams.3. At slip op. 834, third full paragraph carrying over to p.835; 135 F.3d at 642, third full paragraph beginning with"The Tribes argue . . ."; delete the paragraph and replace itwith five paragraphs as follows:"Of particular concern to the Tribes is the restriction thatallows the Growers to control access to natural clams bychoosing not to harvest them in favor of the oysters underwhich the clams are found. The Tribes describe this restrictionas a "gaping loophole" that has the capacity at the Growers'discretion to deny to them the very rights to natural clamswhich our holding confirms.The Growers' counter with the argument from the recordthat the process of harvesting natural clams from underneaththe oyster beds can seriously disrupt and suffocate their oys-ters.On reflection, the Tribes' concerns-- although certainly notfanciful--are based at this point on speculation as to whatmight happen in the future. The Growers, for example, repre-sent that "where there are substantial economic benefits to aGrower from harvesting clams, the Grower will do so. " And,"[a]s soon as the Grower does, the trial court's implementa-tion plan provides that the Tribes have the right to a share ofthose clams." The Growers say that they are " commercialfarmers--if there is money to be made, the resource assuredlywill be exploited."Under the circumstances, we believe that the district court'srestrictions do not amount at this time to an abuse of discre-tion. The district court attempted to fashion a prospectivesolution to a difficult situation by balancing the parties'respective interests. The district court's restrictions safeguardthe Tribes' right of access to the ancient fisheries, but alsoprotect the interests of the Growers and Private Owners.Importantly, in this aspect of the court's decision the court didnot use equity as the basis for its interpretation of the deci-sion, but only as a way to implement its correctly reasonedinterpretation of the Proviso. While the Tribes may not behappy with the limits imposed on their harvesting, they arestill able to effectuate their allocation under the Treaties andare not excluded from their ancient fisheries.We are confident that any future practices by the Growersthat trench inappropriately upon the Tribes' rights as con-firmed in this opinion will be adequately dealt with by the dis-trict court. The district court is the best place to manage anywrinkles that might crop up. The best way to avoid such prob-lems, of course, is for the parties constructively to worktogether to respect each others' rights."4. At slip op. 839, concurring opinion of Judge Beezer;135 F.3d at 644; withdraw the entire opinion and replace witha new concurring opinion as reflected in the amended opinionfiled herewith.With these amendments, the panel has voted unanimouslyto deny the petition for rehearing and to reject the suggestionfor rehearing en banc.The full court has been advised of the suggestion forrehearing en banc and no judge of the court has requested avote on it. Fed. R. App. P. 35(b).The petition for rehearing is DENIED and the suggestionfor rehearing en banc is REJECTED.
_____________________________OPINION TROTT, Circuit Judge:I. OVERVIEWThe State of Washington, groups of private tideland prop-erty owners ("Private Owners"), and commercial shellfishgrowers ("Growers") (collectively, "Appellants") appeal thedistrict court's judgment following two bench trials in anaction brought by numerous Indian Tribes1 (the "Tribes") andthe United States (on the Tribes' behalf) seeking a declarationof rights to shellfish under the Stevens Treaties ("Treaties").The United States and the Tribes cross-appeal the districtcourt's order implementing the Tribes' rights.In 1855, the United States negotiated five Treaties with theTribes in the Western Washington Territory. The Tribesceded their aboriginal lands to the United States for settle-ment, receiving in exchange exclusive title to defined lands,free medical care, schools, occupational training, and annuitypayments. The Treaties also reserved to the Tribes the "rightof taking fish, at all usual and accustomed grounds and sta-tions . . . in common with all citizens of the Territory . . . ."In a series of decisions beginning in 1974, federal courts,including the Ninth Circuit and the Supreme Court, held thatthis treaty language entitles the Tribes to take fifty percent ofthe salmon and other free-swimming fish in the waters con-trolled by Washington State. The Tribes' rights to shellfishunder the Treaties, however, are limited by the following pro-viso (the "Shellfish Proviso"): "Provided, however, That theyshall not take shellfish from any beds staked or cultivated bycitizens."This case concerns the nature and extent of the Tribes'shellfishing rights under the Treaties. The district court con-cluded in a thoughtful and well-reasoned opinion that the term"fish," as used in the Stevens Treaties, includes shellfish. Thecourt then concluded that the Tribes have a right to take onehalf of the harvestable shellfish of every species found any-where within their usual and accustomed fishing areas, exceptas expressly limited by the Shellfish Proviso. The court inter-preted the Shellfish Proviso "only to exclude Indians fromartificial, or planted shellfish beds; [the parties to the Treaties]neither contemplated nor desired that the Indians would beexcluded from natural shellfish beds." United States v. Wash-ington, 873 F. Supp. 1422, 1441 (W.D. Wash. 1994). Thecourt's conclusions substantially reflect the position of theTribes and of the United States, which the court found to be"overwhelmingly" supported by the historical evidence of theintent of the signatory parties to the Treaties.After its decision interpreting the Treaties, the district courtheld a second trial to determine a plan for implementing theTribes' shellfishing rights ("Implementation Plan"). Employ-ing principles of equity, the court refined its definition of"cultivated" under the Proviso and precluded the Tribes fromharvesting shellfish on most of the commercial Growers'property. In addition, the court placed time, place, and mannerrestrictions on the Tribes' ability to harvest from privately-owned land. Finally, the court devised a system for theappointment and removal of Special Masters to resolve dis-putes arising from the Implementation Plan. These consoli-dated appeals followed.We have jurisdiction under 12 U.S.C. S 1291, and weaffirm in part and reverse in part.II. HISTORICAL BACKGROUNDA. The Stevens Treaties The record contains extensive persuasive evidence concern-ing the Tribes' reliance on fish and shellfish for commercial,subsistence, and ceremonial purposes. Fishing was "not muchless necessary to the existence of the Indians than the atmo-sphere they breathed." United States v. Winans,
198 U.S. 371
,381 (1905). The United States Treaty negotiators, under theleadership of Governor Isaac Stevens, were well aware of theTribes' use and reliance on a wide variety of fish, includingshellfish. "The United States' primary purpose[in enteringthe Treaties] was to extinguish the Indians' title to the landsin Western Washington, thereby clearing the way for settle-ment by Europeans." United States v. Washington, 873 F.Supp. 1422, 1436 (W.D. Wash. 1994) [hereinafter "ShellfishI"]. Because of the Tribes' extensive reliance on fish, how-ever, "[t]he United States was aware that . .. it was clearlynecessary to preserve the Indians' fishing rights. " Id."Whatever land concessions [the Tribes] made, the Indiansviewed a guarantee of permanent fishing rights as an absolutepredicate to entering into a treaty with the United States." Id.at 1437.At the time of the Treaties, a shellfish-cultivation industryhad begun to develop at Shoalwater Bay in the WashingtonTerritory. The United States treaty negotiators were familiarwith the practices of that industry, which was modeled afterthe larger, older, and more developed shellfish industry on theEast Coast of the United States. Id. at 1434. Shellfish farmerscreated "cultivated" beds (ones on which shellfish spawnwould not naturally set) by removing oysters from their natu-ral beds to areas where they could grow more rapidly, or byplacing shells or other material to harden the bottom andthereby facilitate the setting of the oysters. In addition to cre-ating cultivated beds, shellfish farmers frequently "staked"beds of shellfish by storing market-sized shellfish removedfrom other beds until they could be shipped to market. Thesestaked beds did not naturally contain shellfish of the typebeing stored, and their boundaries were marked for identifica-tion purposes with stakes extending above the surface of thewater at high tide. Id. at 1432-37.Fish, including shellfish, were exceptionally abundant andconsidered inexhaustible at treaty time. Id. at 1438. Hence,the United States negotiators believed that preserving Indianfishing rights would not interfere with the rights of citizens.The "negotiators were aware of the thriving shellfish industryin fully-developed East Coast cities, and likely assumed basedon those examples that development in the Puget Sound andon the western shore would not interfere with the Indians'exercise of their treaty fishing rights." Id. In light of the above, the United States negotiated five trea-ties with Indian Tribes of the Western Washington Territoryin 1854 and 1855.2 Through each of these Treaties, in substan-tially identical language, the Tribes secured their preexistingright to take fish: The right of taking fish, at all usual and accus- tomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gath- ering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens . . . .Treaty of Medicine Creek, supra, Art. III.B. Post-Treaty DevelopmentsIn the years immediately following the Treaties, the Indiansharvested the majority of the shellfish resource. In 1879, how-ever, the territorial legislature passed a law that, for the firsttime, allowed citizens the exclusive right to use and harvestnatural oyster beds. Shellfish I, 873 F. Supp. at 1440."Washington became a state in 1889, and in 1895 it passedlegislation (the `Bush' and `Callow' Acts) for private pur-chase of tidelands, even when those tidelands contained natu-ral shellfish beds." Id. Since that time, the State has sold offthe "vast majority" of its tidelands to private owners. Id. at1439.Uncontradicted evidence at trial showed that native shell-fish populations have declined dramatically and have beenreplaced to a large extent by foreign species introduced intothe area after the Treaties. For example, native littleneckclams have been replaced by the introduced species, manilaclams, which comprised over eighty percent of the total clamharvest in the Puget Sound from 1988-90. This litigation--initiated by the Tribes and United States--is the consequenceof the increasing competition for, and depletion of, the shell-fish resource.III. PROCEDURAL HISTORYIn 1970, the United States and the Tribes brought suitagainst the State of Washington seeking an interpretation ofthe Treaties and an injunction to enforce the Tribes' fishingrights. See United States v. Washington, 384 F. Supp. 312,327 (W.D. Wash. 1974) [hereinafter "Washington I"].In Washington I, Senior Judge Boldt determined the natureand extent of the Tribes' off-reservation fishing rights withrespect to anadromous fish.3 That decision established thelocations of the Tribes' usual and accustomed grounds andstations and found that the Tribes were entitled to take fiftypercent of the harvestable fish from those grounds and sta-tions. We affirmed in United States v. Washington, 520 F.2d676 (9th Cir. 1976) [hereinafter "Washington II"]. TheSupreme Court substantially affirmed that decision, conclud-ing that the trial court had correctly adjudicated the nature andextent of the Tribes' fishing rights. Washington v. WashingtonState Commercial Passenger Fishing Vessel Ass'n, 443 U.S.658 (1979) [hereinafter "Fishing Vessel "]. The SupremeCourt's decision in Fishing Vessel marks the seventh time thatthe Supreme Court has addressed the fishing clause of the Ste-vens Treaties.4The district court in Washington I reserved jurisdiction tohear future unresolved issues arising out of the Treaties.Under the court's procedures, the Tribes must bring a requestfor adjudication of their fishing rights to the court's attentionthrough the filing of a "Request for Determination."Washington I, 384 F. Supp. at 419.In 1989, pursuant to the above procedure, sixteen IndianTribes, later joined by the United States, filed an action in thedistrict court seeking a declaration of the nature and extent oftheir shellfishing rights.5 The district court's decision inShellfish I interpreted the Treaties to award fifty percent of theshellfish harvest in Washington waters to the Tribes.After announcing its decision in Shellfish I, the court con-ducted a six-day "implementation trial." The purpose of theimplementation trial was to receive evidence regarding pro-posed plans to implement Shellfish I. Parties submitted com-peting plans. On August 28, 1995, the district courtannounced its Implementation Plan. United States v. Wash-ington, 898 F. Supp. 1453 (W.D. Wash. 1995)[hereinafter"Shellfish II"]. In Shellfish II, the district court noted that"[t]he Shellfish Growers and Private Property Owners are,effectively, innocent purchasers who had no notice of theTribes' Treaty fishing right when they acquired theirproperty." Id. at 1457. "Consequently, it is incumbent uponthis Court to use its equitable powers to effect a balancebetween the Tribes' Treaty shellfishing right and the Grow-ers' and Owners' interest in the peaceful enjoyment and/orcommercial development of their property." Id. The districtcourt then made several important rulings.First, the court ruled that, when the State acts on behalf ofits citizens by developing artificial shellfish beds for recre-ational shellfishing on state-owned tidelands, it is a "citizen"within the scope of the shellfish proviso, which exempts tribalharvesting from "beds staked or cultivated by citizens." Id. at1459-60. The effect of this ruling is to exclude the Tribesfrom shellfishing in state-created artificial beds.Second, the court clarified the definition of a "natural shell-fish bed" which may not be "staked or cultivated" in thefuture by the Growers. The court concluded that a "naturalshellfish bed" is a "bed which is capable of sustaining a yieldof shellfish that will support a commercial livelihood." Id. at1461. The court then found that the minimum density ofmanila clams that will support a commercial livelihood is 0.5pounds of mature clams per square foot.Third, the court redefined "artificial beds," which areexempted by the Shellfish Proviso from the reach of theTribes' shellfishing rights. The court believed that it would be"very difficult" to determine whether beds on Growers' prop-erties were "artificial" or "natural" and that the Tribes shouldnot benefit from the Growers' efforts to enhance the shellfishresource on their own properties. Id. at 1461-62. The courttherefore modified the definition of "cultivated " to encompassthe "wide range of techniques used by the Growers to enhanceproduction of shellfish on their property." Id. The courtreferred to these beds as "de facto artificial beds." Id. at 1462& n.18. Under the court's ruling, only "those beds whoseexistence is entirely due to the natural propagation of thespecies" are subject to the Tribes' Treaty rights. Id. at 1462.Fourth, the court imposed "time, place, and manner"restrictions on the Tribes' right to shellfish on private proper-ties. Id. at 1470-73. One such restriction was a blanket ban onupland access across private property absent consent by theowner.The court also set forth dispute resolution procedures, call-ing for a panel of four special masters: one selected by theTribes, one by the Growers, one by the Private Owners, andone by the State. Id. at 1475-76. A single master, drawn fromthe four, determines each dispute. Under the court's decision,the masters have the power to award damages against Tribeswho violate the Implementation Plan. Id. In response to motions to reconsider its decision inShellfish II, the district court amended its decision on Decem-ber 18, 1995. United States v. Washington, 909 F. Supp. 787(W.D. Wash. 1995) [hereinafter "Shellfish III"]. In ShellfishIII, the court revised its ban on upland tribal access to shell-fish beds absent consent of the landowner by allowing tribesto cross private land after a showing of "the absence of accessby boat, public road, or public right-of-way." Id. at 793. Dis-putes over access must be presented to a special master. Id.at 791-93. The court also changed its decision allowing thespecial master to award damages against the Tribes. The mas-ter is still able to award damages against individual tribalmembers who damage private property during exercise offishing rights, but he or she cannot award damages against theTribes themselves. Id. at 793-94.IV. STANDARD OF REVIEWAll parties agree that the meaning of the Treaty languageis ultimately a question of law reviewed de novo. UnitedStates v. Washington, 969 F.2d 752, 754 (9th Cir. 1992).Although several Private Owner groups assert that the districtcourt's findings regarding the "negotiators' intentions andexpectations" are mixed issues of law and fact reviewed denovo, we have previously reviewed a district court's findingsof parties' intent in entering Indian Treaties "[u]nder thehighly deferential clear error standard." See, e.g., Confeder-ated Tribes of Chehalis Indian Reservation v. Washington, 96F.3d 334, 343 (9th Cir. 1996), cert. denied, 117 S. Ct. 1432(1997). We therefore review for clear error all of the districtcourt's findings of historical fact, including its findingsregarding the treaty negotiators' intentions. We then reviewde novo whether the district court reached the proper conclu-sion as to the meaning of the Shellfish Proviso given thosefindings.We review for an abuse of discretion the district court'sequitable orders. The district court abuses its discretion whenits equitable decision is based on an error of law or a clearlyerroneous factual finding. Foster v. Skinner, 70 F.3d 1084,1087 (9th Cir. 1995).V. CANONS OF TREATY CONSTRUCTION"[A]ll Treaties made, . . . under the Authority of the UnitedStates, shall be the supreme Law of the Land and the Judgesin every State shall be bound thereby, any Thing in the Con-stitution or Laws of any State to the Contrary notwith-standing." U.S. Const. Art. VI, cl. 2. The goal of treaty inter-pretation is to determine what the parties meant by the treatyterms. Shoshone Indians v. United States,
324 U.S. 335
, 353(1945). "[I]t is the intention of the parties. . . that must con-trol any attempt to interpret the treaties." Fishing Vessel, 443U.S. at 675. This analysis of the parties' intentions "begin[s]with the text of the treaty and the context in which the writtenwords are used." Eastern Airlines, Inc. v. Floyd, 499 U.S.530, 534 (1991) (internal quotations and citations omitted)." `[T]reaties are constructed more liberally than private agree-ments, and to ascertain their meaning we may look beyondwritten words to the history of the treaty, the negotiations, andthe practical construction adopted by the parties.' " Id. at 535(quoting Choctaw Nation of Indians v. United States, 318U.S. 423, 431-32 (1943)).The Shellfish Proviso is an exception to the Tribes' broadfishing rights. "A proviso is strictly construed, and only thosesubjects expressly restricted are freed from the operation ofthe statute." Sutherland on Statutory Construction, S 20.22, at110 (5th ed. 1992).Courts have uniformly held that treaties must be liberallyconstrued in favor of establishing Indian rights. ConfederatedTribes of Chehalis, 96 F.3d at 340. "Any ambiguities in con-struction must be resolved in favor of the Indians. " Id.(citation omitted). "These rules of construction`are rooted inthe unique trust relationship between the United States andthe Indians.' " Id. (quoting Oneida County v. Oneida IndianNation,
470 U.S. 226, 247
(1985)).VI. DISCUSSIONA. EXCEPT AS LIMITED BY THE SHELLFISH PROVISO, THE RIGHT OF TAKING SHELLFISH UNDER THE TREATIES IS COEXTENSIVE WITH THE RIGHT OF TAKING FISH.The district court held that the Treaties grant the Tribes aright to take shellfish of every species found anywhere withinthe Tribes' usual and accustomed fishing areas, except asexpressly limited by the Shellfish Proviso. We agree.1. The Tribes' shellfish rights are not limited by species.[1] The State of Washington argues that the Tribes' right totake shellfish is limited to those species of fish actually har-vested by the Tribes prior to the signing of the Treaties.6 Spe-cifically, Washington contends that the tribes have no Treatyright to certain "deep-water" species7 of shellfish that werenot historically harvested in shallower waters and on tide-lands. We respectfully reject this contention because it isplainly inconsistent with the language of the Treaties, the lawof the case, and the intent and understanding of the signatoryparties. See Shellfish I, 873 F. Supp. at 1430.[2] With all deference to the State, there is no language inthe Treaties to support its position: the Treaties make no men-tion of any species-specific or technology-based restrictionson the Tribes' rights. The district court aptly noted that, hadthe Treaty parties intended to limit the harvestable species, theparties would not have chosen the word "fish. " The word"fish" has "perhaps the widest sweep of any word the drafterscould have chosen." Id. Thus, the district court correctlychose not to "deviate from [the Treaties'] plain meaning." Id.Washington's position is also contrary to the law-of-the-case doctrine. In 1974, Judge Boldt rejected an argument sim-ilar to Washington's current position, stating:"The rightsecured by the treaties to the Plaintiff tribes is not limited asto species of fish, the origin of fish, the purpose or use or thetime or manner of taking . . . ." Washington I, 384 F. Supp.at 401. Moreover, the court determined that the Treaties "donot prohibit or limit any specific manner, method, or purposeof taking fish." Id. at 402. We previously affirmed these con-clusions "in all respects," Washington II, 520 F.2d at 693, andwe continue to believe they are correct.[3] Washington relies heavily on the Supreme Court'sstatement in Fishing Vessel that "securing" fishing rights is"synonymous with `reserving' rights previously exercised."
443 U.S. at 678
(emphasis added). Washington's contention,however, is contrary to the recognized principle that the Trea-ties involved a grant of rights from the Indians to the UnitedStates. United States v. Winans,
198 U.S. 371, 380
-81 (1905).In Winans, the Supreme Court upheld the Indians' right ofaccess over private property in order to fish in the ColumbiaRiver. Id. at 384. The Court construed the fishing rights in theStevens Treaty as "not a grant of rights to the Indians, but agrant of rights from them--a reservation of those notgranted". Id. As the district court explained: At [Treaty] time, . . . the Tribes had the absolute right to harvest any species they desired, consistent with their aboriginal title. . . . The fact that some spe- cies were not taken before treaty time--either because they were inaccessible or the Indians chose not to take them--does not mean that their right to take such fish was limited. Because the "right of tak- ing fish" must be read as a reservation of the Indi- ans' pre-existing rights, and because the right to take any species, without limit, pre-existed the Stevens Treaties, the Court must read the "right of taking fish" without any species limitation.Shellfish I, 873 F. Supp. at 1430 (citation omitted). A morerestrictive reading of the Treaties would be contrary to theSupreme Court's definitive conclusion that the Treaties are a"grant of rights from" the Tribes. Winans,
198 U.S. at 380
.We therefore reject Washington's argument that the Tribesare limited in the species of shellfish they harvest.2. The "usual and accustomed grounds and stations" do not vary by species of fish.Appellants argue that the district court erred in holding thatthe right of taking fish within "all usual and accustomedgrounds and stations" of a Tribe does not vary by species offish. They contend that the Tribes' "usual and accustomed"fishing grounds for shellfish are not coextensive with theusual and accustomed grounds for the taking of other fish, theboundaries of which were determined in Washington I. Theysuggest that the Tribes must establish their usual and accus-tomed grounds for each species of fish. We respectfully dis-agree.[4] In Washington I, the court found that "every fishinglocation where members of a tribe customarily fished. . . isa usual and accustomed ground or station at which the treatytribe reserved, and its members presently have, the right tofish." 384 F. Supp. at 332. That court heard extensive evi-dence and made findings with respect to each Tribes' usualand accustomed fishing grounds. Id. at 359-82. Since the timeJudge Boldt made these findings, courts considering fishingdisputes under the Treaties have never required species-specific findings of usual and accustomed fishing grounds. Infact, the district court in a prior proceeding on a related Ste-vens Treaties case found that the usual and accustomedgrounds and stations for herring (a non-anadromous fish)were co-extensive with those previously adjudicated forsalmon (an anadromous fish). United States v. Washington,459 F. Supp. 1020, 1049 (W.D. Wash. 1978) (ruling that thetribes may take herring at all of its usual and accustomed fish-ing places to the same extent and subject to the same termsand conditions as specified in Washington I).[5] Moreover, it would be extremely burdensome and per-haps impossible for the Tribes to prove their usual and accus-tomed grounds on a species-specific basis. "Littledocumentation of Indian fishing locations in and around 1855exists today." 459 F. Supp. at 1059. If each Tribe wererequired to prove its usual and accustomed grounds for everyspecies of fish and shellfish, the time and cost to the court andparties would be unreasonably burdensome.[6] In light of the above, the district court was correct inconcluding that the Tribes' usual and accustomed grounds forshellfish are co-extensive with the Tribes' usual and accus-tomed fishing grounds, which have been previously decidedby the courts.3. The Equal Footing Doctrine does not preclude tribal harvesting.[7] Appellants contend that the "Equal Footing Doctrine"and the "Shively presumption" preclude tribal harvesting onthe tidelands. "Under the Equal Footing Doctrine, every newstate is entitled to entrance into the Union free of any encum-brance on its land, so that it stands on `equal footing' with theother states." Shellfish I, 873 F. Supp. at 1442-43 (citingShively v. Bowlby,
152 U.S. 1
(1894)). "The`Shivelypresumption' is an outgrowth of this doctrine, and holds thatany pre-statehood grant of property does not include tidelandsunless the grant clearly indicated that tidelands wereincluded." Id. at 1443 (citation omitted). We conclude that thelanguage of the Treaties, the law of this case, and theSupreme Court's prior applications of the Equal Footing Doc-trine all counsel against its application in the instant case.In short, Appellants contend that any treaty right to harvestshellfish would amount to a property interest in the tidelands,and because the Treaties do not clearly specify an intent togrant a property interest in the tidelands, the Treaties cannotbe construed as providing rights to harvest shellfish. The dis-trict court rejected this argument and interpreted the Treaties"without regard to the Equal Footing Doctrine or the Shivelypresumption." Id. We agree with the district court's interpre-tation.Appellants rely primarily on two cases, United States v.Holt State Bank,
270 U.S. 49
(1926), and Montana v. UnitedStates,
450 U.S. 544
(1981). Both cases involved disputesover Indian title rights to lands underlying navigable waters.In both cases, the Supreme Court applied the Shivelypresumption and concluded that the treaties at issue "did notby [their] terms formally convey any land to the Indians atall." Montana,
450 U.S. at 553
. In Holt State Bank, the Courtconcluded "there was nothing in [the treaties ] which evenapproaches a grant of rights in lands underlying navigablewaters."
270 U.S. at 58
.In the instant case, however, "the Tribes possess the dis-puted rights [to harvest shellfish] pre-treaty, and the treatysimply effects a reservation of rights." 873 F. Supp. at 1443.As the district court stated: It is settled under Washington II that the fishing rights at issue in this case predated the Stevens Trea- ties, and the Treaties simply effected a reservation of those rights. Similarly, the Supreme Court acknowl- edged the reservation in Fishing Vessel:"The fishing clause speaks of `securing' certain fishing rights, a term the Court has previously interpreted as synony- mous with `reserving' rights previously exercised." Fishing Vessel,
443 U.S. at 678
. Because the Stevens Treaties must be construed as a reservation of rights by the Tribes, not a granting of rights by the United States, the Shively presumption and the Equal Foot- ing Doctrine cannot play a role in the evaluating the existence or scope of the rights.Id. at 1443-44 (citation omitted). We adopt the district court'spersuasive reasons for rejecting the application of the Shivelypresumption to defeat the Tribes' shellfishing rights.[8] We note that "the Supreme Court has applied the EqualFooting Doctrine in one context only, namely when evaluat-ing a claim of right to lands beneath navigable waters basedupon an alleged conveyance or retention of fee simple owner-ship by the United States prior to statehood." Id. at 1444 (cit-ing cases); see Montana,
450 U.S. at 550
-51 ("The questionis whether the United States conveyed beneficial ownership ofthe riverbed to the Crow Tribe by the Treaties of 1851 or1868."); Holt State Bank,
270 U.S. at 57
(adjudicating thequestion of "whether the lands under the lake were disposedof by the United States before Minnesota became a state");Utah Div. of State Lands v. United States,
482 U.S. 193
, 204(1987) (The United States answered in the district court thattitle to the lakebed remained in federal ownership by selectionof the lake as a reservoir site prior to Utah's statehood).Unlike the above cases, the instant case does not involveownership of tidelands. The Tribes do not claim ownership ofthe tidelands; the Tribes merely assert their right to harvestshellfish within the tidelands, regardless of ownership.[9] Moreover, application of the Equal Footing Doctrinehas already been rejected in the context of the Stevens Trea-ties fishing rights. First, the Supreme Court in Winans noted: [I]t is contended that the State acquired, by its admission into the Union "upon an equal footing with the original States," the power to grant rights in or to dispose of the shore lands upon navigable streams, and such power is subject only to the para- mount authority of Congress with regard to public navigation and commerce. The United States, there- fore, it is contended, could neither grant nor retain rights in the shore or to the lands under water.* * * The extinguishment of the Indian title, opening the land for settlement and preparing the way for future States, were appropriate to the objects for which the United States held the Territory. And surely it was within the competency of the Nation to secure to the Indians such a remnant of the great rights they pos- sessed as "taking fish at all usual and accustomed places."
198 U.S. at 382
-84. Similarly, Appellants' Equal Footingarguments have been rejected in this case: Admission of the State of Washington into the Union upon an equal footing with the original states had no effect upon the treaty rights of the Plaintiff tribes. Such admission imposed upon the State, equally with other states, the obligation to observe and carry out the provisions of treaties of the United States.Washington I, 384 F. Supp. at 401. Thus, we can identify noreason or rule that would mandate the application of the EqualFooting Doctrine to limit the Tribes' fishing rights in thiscase. The language of the Treaties, the law of this case, andthe Supreme Court's prior applications of the Equal FootingDoctrine all preclude its application here.4. The Tribes are entitled to harvest shellfish on privately-owned tidelands.The Private Owners contend that the Tribes' right to takeshellfish does not include the right to take shellfish found onprivately-owned tidelands. The Private Owners argue that theTreaties gave the Tribes the same common right to harvestshellfish as that enjoyed by non-Indian citizens, and that thiscommon right was diminished by the conveyance of the prop-erty into private ownership. They contend also that the Trea-ties only allow the Tribes to take the common resources of"public water and public lands," not to take shellfish on pri-vate lands. We reject these contentions.[10] First, the Supreme Court has consistently rejectedarguments to the effect that Indian treaties reserve to the Indi-ans no more fishing rights than those enjoyed by non-Indiancitizens. See Winans,
198 U.S. at 380
(rejecting lower courtruling that Indians had no more rights than any inhabitant ofthe Territory); Fishing Vessel,
443 U.S. at 676
-77 & n.22(rejecting argument that Indians only possessed rights in com-mon with other citizens).[11] Second, as the Supreme Court explained in Winans,the Tribes were promised "the right of taking fish at all usualand accustomed places" and the right "of erecting temporarybuildings for curing them."
198 U.S. at 381
."The contin-gency of future ownership of the lands, therefore, was fore-seen and provided for" and, "in other words, the Indians weregiven a right in the land." Id. Winans directly contradicts thePrivate Owners' argument: the Supreme Court has made clearthat the Tribes' fishing rights in their usual and accustomedplaces are not diminished by private ownership of those lands.In fact, the Court noted that the Treaties "imposed a servitudeupon every piece of land as though described therein." Id. [12] Moreover, in Fishing Vessel, the Supreme Courtexplicitly recognized that the "[T]reaties provide Indians withcertain rights--i.e., the right . . . to cross private lands--thatnon-Indians do not have." Fishing Vessel,
443 U.S. at 676
n.22. The district court acknowledged this right in Shellfish IIIand correctly concluded that: [U]pon proper showing of the need for land access, the Tribes would be entitled under Winans to cross private property in order to exercise their fishing rights. Resolving the issue of Tribal access across private property requires the balancing of competing interests, and the Court emphasizes that land access is not to be granted unless there is a proper showing of the need for such.909 F. Supp. at 792.This case is not the first Stevens Treaties case to implicateprivate property rights. The previous fishing rights cases,upheld in Fishing Vessel, noted that the Treaties "include[ ]the right to use private tidelands for beach seines, tidalimpoundment traps, stake nets and reef nets." Shellfish I, 873F. Supp. at 1444; see Washington I, 384 F. Supp. at 360-61,378. Appellants' attempts to distinguish the anadromous fish-ing rights from the shellfishing rights are not persuasive. TheSupreme Court has said that "[i]t is absolutely clear, as Gov-ernor Stevens himself said, that neither he nor the Indiansintended that the latter should be excluded from their ancientfisheries, and it is accordingly inconceivable that either partydeliberately agreed to authorize future settlers to crowd theIndians out of any meaningful use of their accustomed placesto fish." Fishing Vessel,
443 U.S. at 676
.The Private Owners also contend that shellfish are differentthan anadromous fish because they have traditionally beenheld to be a part of the land. The district court rejected thiscontention, stating that "the uniform common law at treatytime held that private ownership of a parcel of tideland didnot include private rights to the shellfish on that parcel."Shellfish I, 873 F. Supp. at 1439. In support of this proposi-tion, the district court cited Joseph Angell's 1847 Treatise onthe Right of Property in Tide Waters, which states that"[t]here is no doubt, that the public have a right to take shell-fish on the shore, though the right of soil in the shore happensto be private property."[13] On appeal, both the Tribes and the Private Owners citeseveral cases in support of their respective contentions thatthe right to harvest shellfish from private property was (orwas not) permitted at Treaty time. See Smith v. Maryland, 59U.S. (18 How.) 71, 74-75 (1855) (stating that "the enjoymentof certain public rights" included "the common liberty of tak-ing fish, as well shellfish as floating fish"); Martin v. Wad-dell, 41 U.S. (16 Pet.) 367, 413-14 (1842) (noting that publicrights applied "as well for shell-fish and floating fish"). Butsee Den v. The Jersey Co.,
56 U.S. 426
, 432-33 (1853)("Clams ordinarily live in the soil under the waters, and notwithin the waters. . . . They therefore, in a very material sense,belong with the land."). Regardless of whether shellfish werea private or public resource at treaty time, or today, the Trea-ties secured the Tribes' right to fish at their usual and accus-tomed grounds and stations. The Tribes therefore acquired theright to take shellfish from the tidelands within their usual andaccustomed grounds, without regard to the public or privatenature of their ownership. As the district court stated inWashington I, "[b]ecause the right of each treaty tribe to takeanadromous fish arises from a treaty with the United States,that right is reserved and protected under the supreme law ofthe land, does not depend on state law, is distinct from rightsor privileges held by others, and may not be qualified by anyaction of the state." 384 F. Supp. at 402. Thus, whatever thestatus of the state law at the time of the Treaties or today, theTreaties represent the supreme law of the land and give to theTribes the right to take shellfish from private tidelands. SeeFishing Vessel,
443 U.S. at 682
(stating that "neither party tothe treaties may rely on the State's regulatory powers or onproperty law concepts to defeat the other's right to a `fairlyapportioned' share of each covered run of harvestable anadro-mous fish") (emphasis added).[14] In light of Winans, Fishing Vessel, and the Treaties'language and power as the supreme law of the land, the dis-trict court correctly determined that the Tribes have a right toharvest shellfish on private tidelands.B. THE DISTRICT COURT PROPERLY INTERPRETED THE MEANING OF THE SHELLFISH PROVISO.The Treaties' fishing clauses were expressly limited by theShellfish Proviso, which prohibited the Tribes from takingshellfish from "any beds staked or cultivated by citizens." Thedistrict court "interpret[ed] the terms`staked' and `cultivated'as the terms were defined and used in the shellfishing industryat and before treaty time." 873 F. Supp. at 1441. The districtcourt concluded that, when the signatory parties used thoseterms in the Proviso, "they intended only to exclude Indiansfrom artificial, or planted, shellfish beds; they neither contem-plated nor desired that the Indians would be excluded fromnatural shellfish beds." Id. "Therefore, the words `any bedsstaked or cultivated by citizens,' describe artificial shellfishbeds created by private citizens." Id.[15] The Growers offered the district court an alternativedefinition of staked or cultivated that "starts and ends with thetreaty-time dictionary." Id. at 1431. The district court notedthat under the Growers' theory, "any shellfish bed extanttoday that is surrounded by stakes, or in some fashionimproved by human labor, would be off limits to the Indians."Id. The Private Owners make a similar contention, arguingthat " `staked' should be interpreted in its `frontier' contextand thus should be regarded as a synonym for `claimed as pri-vate property.' Therefore, all privately-owned tideland,whether or not surrounded by stakes, would be protected bythe Shellfish Proviso." Id. The district court rejected theGrowers' and Private Owners' definitions, analyzing theShellfish Proviso in light of: (1) the surrounding treaty words,(2) the record of the treaty negotiations, (3) the historical cir-cumstances that gave rise to the Stevens Treaties, (4) the pos-sible alternative formulations of the Shellfish Proviso, and (5)the post-treaty conduct of both parties. Id. at 1435. In short,the court found that "the Tribes presented compelling evi-dence that only artificial beds were `staked' or`cultivated' attreaty time." Id. at 1431-42. Given the deferential standard bywhich we review the district court's findings of historical factand its findings regarding the intentions of the parties' negoti-ators, we conclude the district court did not err in interpretingthe Proviso and we adopt its analysis as our own. Moreover,we believe that the district court's reasoned analysis of theProviso is correct. We emphasize three additional points.First, the Growers' and Private Owners' interpretations arenot based on the common understanding of the phrase "bedsstaked or cultivated" within the context of the shellfishingindustry at treaty time. The district court made a factual find-ing that the treaty negotiators drew the language of the Shell-fish Proviso from terms commonly used in the fledglingshellfishing industry. Although the Growers may have pres-ented evidence to the contrary, none of this evidence leavesus with a "definite and firm conviction" that a mistake hasbeen committed. See Sawyer v. Whitley,
505 U.S. 333
, 346n.14 (1992). It was therefore not clear error for the districtcourt to have rejected Appellants' interpretation and to haveadopted the Tribes' position.Second, the Growers' interpretation is totally inconsistentwith the "United States' avowed intention to preserve for theIndians their ancient fisheries." Id. at 1437. The Growers' andPrivate Owners' interpretations would read the Proviso toeffectively eliminate the Tribes' right to take shellfish underthe Treaties. Surely, Governor Stevens would not haveintended such a result, especially in light of the historical cir-cumstances surrounding the Treaties' negotiations. In fact, thebenevolent approach taken by the United States treaty negoti-ators was noted by the Supreme Court in Fishing Vessel: Governor Stevens made the following statement to the Indians gathered at Point-No-Point to negotiate the treaty bearing that name: "Are you not my chil- dren and also children of the Great Father? What will I not do for my children, and what will you not for yours? Would you not die for them? This paper is such as a man would give to his children and I will tell you why. This paper gives you a home. Does not a father give his children a home? . . . This paper secures your fish. Does not a father give food to his children?"
443 U.S. at 667
n.11 (emphasis added). Likewise, the districtcourt in this case aptly noted: The one significant promise for purposes of this litigation is the promise by the United States to the Indians that they would enjoy a permanent right to fish as they always had. This right was promised as a sacred entitlement, one which the United States had a moral obligation to protect. The Indians were repeatedly assured that they would continue to enjoy the right to fish as they always had, in the places where they had always fished. There is no indication in the minutes of the treaty proceedings that the Indi- ans were ever told that they would be excluded from any of their ancient fisheries.Shellfish I, 873 F. Supp. at 1435. Were we to adopt the Grow-ers' definition of staked or cultivated, we would be providing"an impotent outcome to negotiations and a convention whichseemed to promise more, and give the word of the nation formore." Winans,
198 U.S. at 380
.Third, the Appellants' interpretation of the Proviso castsaside black-letter canons of statutory construction and treatyinterpretation. The Shellfish Proviso is an exception to theTribes' otherwise broad fishing rights. "A proviso is strictlyconstrued, and only those subjects expressly restricted arefreed from the operation of the statute." Sutherland on Statu-tory Construction, S 20.22, at 110 (5th ed. 1992). Moreover,courts have uniformly held that treaties must be liberally con-strued in favor of the Indians. Confederated Tribes of Che-halis, 96 F.3d at 340. "These rules of construction `are rootedin the unique trust relationship between the United States andthe Indians.' " Id. (quoting Oneida County v. Oneida IndianNation,
470 U.S. 226, 247
(1985)). The Appellants' interpre-tation of the Proviso would render meaningless the above can-ons of construction and interpretation.C. THE DISTRICT COURT CORRECTLY REJECTED APPELLANTS' AFFIRMATIVE DEFENSES.The Growers contend that we should apply the doctrine oflaches to defeat the Tribes' claim to shellfish. The doctrine oflaches is defined as "neglect to assert a right or claim which,taken together with lapse of time and other circumstancescausing prejudice to [the] adverse party, operates as [a] bar in[a] court of equity." Black's Law Dictionary 875 (6th ed.1990). In urging us to apply laches, the Growers argue that"this is an extraordinary case. . . . These extraordinary factscall for new law." Growers' Opening Brief at 44.[16] The Growers ask for new law simply because currentlaw precludes their argument. In Swim v. Bergland, 696 F.2d712, 718 (9th Cir. 1983), we held that "laches or estoppel isnot available to defeat Indian treaty rights." Although theequities do weigh heavily in favor of the Growers' argument--the Tribes waited 135 years to assert their shellfishingrights--the law does not support their claim. See Board ofCounty Comm'rs v. United States,
308 U.S. 343
, 350-51(1939) (defenses based on delay in bringing claims such aslaches and estoppel are inapplicable to claims to enforceIndian rights). Once again, we reiterate that we are interpret-ing a treaty, and that treaties enjoy a unique position in ourlaw.UPOW's argument that the Tribes' treaty rights were extin-guished by the Indian Claims Commission Act, 25 U.S.C.S 70 (repealed 1978), is without merit. Judge Boldt rejectedthis theory over twenty years ago, see United States v. Wash-ington, 459 F. Supp. 1020, 1039-42 (W.D. Wash. 1978), andwe reject it here for the same reasons.D. THE DISTRICT COURT ABUSED ITS DISCRETION IN LIMITING THE TRIBES' RIGHT TO HARVEST SHELLFISH FROM CERTAIN AREAS BECAUSE THE DISTRICT COURT'S ORDER REDEFINED THE TERMS OF THE TREATY.In their cross-appeal, the Tribes and the United States con-tend that, in its implementation decision (Shellfish II), the dis-trict court disregarded its own admonition in its first decisionthat it lacked authority to rewrite or interpret the terms of thetreaties to avoid hardship to any party based on its ownnotions of the equities. The implementation decision, theTribes contend, erroneously redefined the terms of the treatiesin abrogation of the Tribes' right to take shellfish. For exam-ple, the district court refined its definition of the word"cultivated" in the Proviso and imposed "time, place, andmanner" restrictions on the Tribes' ability to harvest shellfish.We hold that the district court impermissibly employedequitable powers to rewrite the Treaties' terms. However, wealso hold that allocating fifty percent of the commercialGrowers' shellfish harvest to the Tribes would unjustly enrichthem. Such an allocation would simply not comport withFishing Vessel's concept of giving the Tribes a "fair share" ofthe harvest. 1. The district court improperly limited the Tribes' right to take shellfish from the Growers' shellfish beds.In Shellfish II, the district court declared that "it is incum-bent upon this Court to use its equitable powers to effect abalance between the Tribes' Treaty shellfishing right and theGrowers' and Owners' interest in the peaceful enjoyment and/or commercial development of their property." Id. Using these"equitable powers," the district court formulated a "broader"definition of a "cultivated" shellfish bed that applies only to"the existing beds on property owned or leased by Growerslicensed by the State of Washington." Id. at 1461. The courtthen deemed natural shellfish beds that have been enhancedby human means "de facto artificial beds" upon which theTribes may not take shellfish.8Id. at 1462. "Permitting theTribes to harvest fifty percent of the shellfish from de factoartificial beds would confer a windfall on the Tribes, andwould neither protect nor encourage the growth of the shell-fish industry." Id. In support of its use of equitable principles, the districtcourt and Appellants primarily rely on five cases: YanktonSioux Tribe of Indians v. United States,
272 U.S. 351
, 357(1926) (awarding Indians monetary payment rather than eject-ing "innumerable innocent purchasers" from tribal land);South Carolina v. Catawba Indian Tribe, Inc.,
476 U.S. 498
,519 n.5 (1986) (Blackmun, J., dissenting) (citing Yankton andacknowledging that equitable considerations might have lim-ited the remedies available had the plaintiff tribe prevailed onits claim to 144,000 acres of land); County of Oneida v.Oneida Indian Nation,
470 U.S. 226, 260
(1985) (Stevens, J.,dissenting) (urging that laches be applied to bar Indians'claim to lands); Brooks v. Nez Perce County, Idaho, 670 F.2d835 (9th Cir. 1982) (in an action to quiet title to a parcel ofland, equitable considerations would not bar the claim to theland entirely, but "[l]ack of diligence by the government inexercising its role as trustee may be weighed by the districtcourt in calculating damages" for several decades of loss ofuse of the land); United States v. Imperial Irrigation Dist.,799 F. Supp. 1052 (S.D. Cal. 1992) (employing tort-law equi-table principles to award monetary damages to the plaintiffIndians, rather than restoring tribal land to them).None of the above cases, however, involve the use of equi-table considerations in interpreting Indian treaties. At best,they condone the use of equity as a tool to calculate damages.The majority in Oneida,
470 U.S. at 244
, stated that "it is farfrom clear that [laches] is available in suits such as this one"to restore Indian lands to Indians pursuant to treaty rights. Infact, in the terse three-page Brooks opinion, the court con-cluded that laches was not a valid bar to the Indians fifty-four-year-old complaint for a parcel of land. 670 F.2d at 837.Brooks had nothing to do with interpretation of an Indiantreaty, but merely concluded that the lengthy delay in pursu-ing the action could be used in "calculating damages." Here,by contrast, the district court is using equitable principles toassist in fashioning the remedy and in interpreting the Treaty.9[17] The Tribes, on the other hand, cite persuasive andunambiguous Supreme Court authority. The district court'sre-interpretation violates the Supreme Court's admonition inUnited States v. Choctaw Nation,
179 U.S. 494
, 532-33(1900), a seminal Indian treaty interpretation case: But in no case has it been adjudged that the courts could by mere interpretation or in deference to its view as to what was right under all the circum- stances, incorporate into an Indian treaty something that was inconsistent with the clear import of its words. . . . We are not at liberty to dispense with any of the conditions or requirements of the treaty, or to take away any qualification or integral part of any stipulation, upon any notion of equity or general convenience, or substantial justice.(emphasis added; quotation and citation omitted). The districtcourt itself recognized in Shellfish I: In reaching its decision, the Court may not rewrite the Treaties or interpret the Treaties in a way con- trary to settled law simply to avoid or minimize any hardship to the public or to the intervenors. Indeed, the Court has no such power. Rather, amelioration from such hardships should be sought from Con- gress, which has the power to abrogate the treaty . . . .873 F. Supp. at 1429. See also Choctaw,
179 U.S. at 531
-32(citing cases in support of rule that "the language used in trea-ties with the Indians should never be construed to theirprejudice" and that words should be construed as they "wereunderstood by this unlettered people, rather than their criticalmeaning"). Under these rules of construction, the Choctawprecedent, and the district court's own statements in ShellfishI, the district court abused its discretion by applying notionsof equity to redefine the term "cultivate."[18] It does not follow from the above, however, that thedistrict court is without the ability to use equity inimplementing its Treaty interpretation. As laid out below, webelieve the district court should have used its equitable pow-ers only to limit the take of the Tribes--not the location--soas to avoid any unjust enrichment.2. The district court improperly allocated to the Tribes a fifty-percent share of shellfish from the Growers' beds.[19] Appellants contend that Tribes' allocation of fifty-percent of the shellfish resource exceeded their "fair share."Appellants suggest that the district court should have consid-ered "equitable factors" and that it improperly applied the"moderate living" analysis suggested by the Supreme Court inFishing Vessel,
443 U.S. at 684
-686. Although we concludethat the district court correctly applied Fishing Vessel's mod-erate living analysis, we hold that the district court shouldhave used equitable principles to limit the Tribe's shellfishharvest from the Growers' beds to a "fair share."In Fishing Vessel, the Court stated that an equitable mea-sure of the common right should initially divide the harvest-able portion of each run that passes through a "usual andaccustomed" place into approximately equal treaty and non-treaty shares, and should then reduce the treaty share if tribalneeds may be satisfied by a lesser amount.
443 U.S. at 685
.The Court elaborated on this concept: [T]he central principle here must be that Indian treaty rights to a natural resource that once was thor- oughly and exclusively exploited by the Indians secures so much as, but no more than is necessary to provide the Indians with a livelihood--that is to say, a moderate living. . . . If, for example, a tribe should dwindle to just a few members, or if it should find other sources of support that lead it to abandon its fisheries, a 45% or 50% allocation of an entire run that passes through its customary fishing grounds would be manifestly inappropriate because the liveli- hood of the tribe under those circumstances could not reasonably require an allotment of a large num- ber of fish.Id. at 686-87. Appellants contend that the district court's allo-cation of fifty percent of the shellfish resource goes beyondwhat is necessary to afford the Tribes a "moderate living."The district court, however, heard evidence as to theTribes' living standards presented by both sides and con-cluded that Appellants' experts' analyses were "flawed."10The district court made the following finding: The uncontroverted evidence presented at trial is that the Tribes lag significantly behind other residents of the State of Washington in their overall standard of living. For example, approximately one in three Tribal members live below the poverty level; Indians in the State of Washington endure health circum- stances characterized by the State as "very poor;" tribal members have per capita incomes that are less than one half the per capita income of non-tribal res- idents of the State; and tribal members suffer from unemployment rates at least three times greater than that of all non-tribal residents of the State of Wash- ington.Shellfish I, 873 F. Supp. at 1446. This finding is not clearlyerroneous.11[20] However, Fishing Vessel instructs us to give the Tribesa "fair share" and to "fairly apportion" the fish. Fishing Ves-sel,
443 U.S. at 682
, 686. With respect to the Growers' shell-fish beds, we conclude that it would contravene such notionsof fairness if the Tribes were permitted to take fifty percentof the Growers' enhanced harvest. Many of the Growers havespent decades developing and enhancing production on theirshellfish beds, investing their valuable time, energy, and con-siderable resources. We therefore hold that only those Grow-ers' beds that exist solely by virtue of the natural propagationof the species are subject to a full fifty-percent harvest alloca-tion. The other Grower beds will be subject to the allocationanalysis below.Our decision here is consistent with our previous decisionin United States v. Washington, 759 F.2d 1353, 1358-59 (9thCir. 1985) (en banc), where we concluded that hatchery fishare subject to Treaty allocation. In that decision, several"equitable considerations" favored the Tribes' position,including "the lack of State ownership of the fish oncereleased" and "the lack of any unjust enrichment of theTribes." Id. Here, however, those same equitable consider-ations do not support the Tribes' allocation of fifty percent ofthe Growers' shellfish. First, unlike hatchery fish--which arereplacement fish that are released into the water when grown--shellfish on the Growers' beds remain on the Growers'beds until they are harvested. Second, in the instant case, theTribes would be unjustly enriched if they were entitled to afull fifty percent of the Growers' shellfish. The Tribes can-didly admitted as much at oral argument when they concededthat equity should permit a Grower to protect his enhancedharvest "for a couple of years." We believe not for a coupleof years, but forever.Our conclusion squares with one of the purposes of the Pro-viso, which was "to protect the fledgling oyster industry['s]"efforts to create a harvest where there was none, or where itwas insufficient to support a commercial livelihood. ShellfishI, 873 F. Supp. at 1437-38; see also id. ("To the extent [theProviso] prohibited Indians from taking shellfish from bothartificial and natural shellfish beds where settlers were engag-ing in fruitful harvesting, [the Proviso] would aid the develop-ment of the industry."). Moreover, the Tribes are not excludedfrom their ancient fisheries; they are merely precluded fromtaking an unfair share.[21] We therefore apply the following analysis to Growerbeds where the Growers, or their predecessors, began theirenhancement efforts on a natural bed. For such natural beds,the Growers shall demonstrate what portion of their harvest isdue to their labor, as opposed to what portion would existabsent the Growers' enhancement. See Shellfish II., 898 F.Supp. at 1462. For such enhanced natural beds, the Tribesshall be entitled to fifty percent of the pre-enhanced sustain-able shellfish production from those beds.12 Of course, thisallocation analysis does not apply to artificial beds, that is, toGrower beds that did not support a sustainable commercialdensity of shellfish prior to cultivation. As the Tribes haveacknowledged, the Tribes have no right to harvest such beds.898 F. Supp. at 1460-61.We place the burden of proving pre-enhancement harvestversus post-enhancement harvest on the Growers--for theGrowers are best able to prove such a calculation. 13 Weremand to the district court for a determination as to the bestmanner to implement this allocation. We emphasize that this"enhanced allocation" analysis applies only to the Commer-cial Shellfish Growers' beds.3. The district court erred by concluding that the State of Washington is a "citizen."The district court determined that the term "citizens" in theShellfish Proviso, "includes the State of Washington, whenthe State acts on behalf of the public." Id. at 1459-60. Thecourt noted that "the five million residents of the State areblameless in this controversy, and the Court believes that thebenefits and efficiencies of permitting the State to act on theirbehalf in growing the State's shellfish resource far outweighany interest the tribes have in limiting the artificial bed exclu-sion to natural persons." Id. n.11. The court therefore con-cluded that "to the extent the State hereafter creates artificialshellfish beds on public property, those beds shall be deemed`staked or cultivated by citizens' and thus excluded under theShellfish Proviso from the Tribes' Treaty right. " Id. Becausethe court once again improperly invoked equitable principlesin its interpretation of the Treaty, and there is no support inthe law for the proposition that a state can be a "citizen," wereverse this aspect of the district court's decision.[22] In the State of Washington's brief and at oral argu-ment, it was unable to cite a single case to support its proposi-tion that a State can be "citizen." We note that it took an actof Congress to enable a corporation to be considered a citizenfor purposes of diversity jurisdiction. See 28 U.S.C. S 1332.We therefore reverse that portion of the district court's deci-sion which deems the State of Washington a "citizen" for pur-poses of the Shellfish Proviso.4. The district court committed clear error in finding that 0.5 pounds of mature clams per square foot is the minimum density necessary to establish a natu- ral bed.[23] In Shellfish II, the district court concluded that "inlight of the practices and understandings in the shellfishindustry that existed at treaty time, it is clear that a quantita-tive definition of a natural bed is appropriate. " 898 F. Supp.at 1461. The court defined a "natural shellfish bed" as a "bedcapable of sustaining a yield of shellfish that will support acommercial livelihood." Id. The Tribes do not dispute thesefindings, but contend that the district court committed clearerror when it found that the minimum quantity of manilaclams that will support a commercial livelihood is 0.5 poundsof mature clams per square foot. Manila clams are the onlyspecies for which the district court made such a finding.Because there is insufficient evidence in the record to supportthe district court's finding, we conclude that the district courtclearly erred.14[24] No witness gave an opinion as to the density of manilaclams necessary for a successful commercial harvest. No doc-ument in the record sets forth any analysis of what density isnecessary for commercial success. There is a document in therecord which purports to show the densities of twelve manilaclam beds leased from the State of Washington, but twelvebeds is far too small and unrepresentative a sample of com-mercial beds to support a reliable finding of fact. See, e.g.,National Lime Ass'n v. EPA, 627 F.2d 416, 434 n.52 (D.C.Cir. 1980) (recognizing problems with generalizing "from anextremely limited sample when a broader sample . . . can bereadily obtained and when no showing of the representative-ness of the sample is made") (citations omitted). Moreover,there is no indication that these bed samples included onlymature clams in their density calculation. Significantly, twoof the twelve beds appear to have densities of less than .26pounds per square foot.[25] In light of the above, we reverse the district court'sfinding that the minimum quantity of manila clams that willsupport a commercial livelihood is 0.5 pounds of matureclams per square foot. We remand to the district court for anew hearing on this issue. 5. The district court did not abuse its discretion by limiting the Tribes' ability to cross private uplands.The district court prohibited tribal access across privatelyowned upland property to reach shellfishing areas unless"specifically requested from and granted by a SpecialMaster," with permission to be refused unless "tribal mem-bers can demonstrate the absence of access by boat, publicroad, or public right of way."15 Shellfish III, 909 F. Supp. at793. The Tribes contend that this decision is "an unprece-dented limitation on Tribes' treaty fishing rights."[26] The Supreme Court has already determined that theTribes are entitled to a right of access across private lands toinvoke their Treaty fishing rights. Winans,
198 U.S. at 383
.Winans recognized that the Treaties "imposed a servitudeupon every piece of land as though described therein." Id. at381. Rather than completely eliminating the Tribes' rights tocross private land, which it could not do under Winans, thedistrict court engaged in a careful balancing of hardships infashioning its remedy. Although we have held that the districtcourt cannot use equitable principles in interpreting the Trea-ties, it can use them in deciding how to implement the Trea-ties (i.e., how the tribes will be allowed to exercise theirpreviously interpreted rights). Such a use of equities is per-missible under the circumstances of this case. See Yankton,
272 U.S. at 357
(allowing monetary damages to Indians inlieu of ejectment of innocent land purchasers in order to avoida "great injustice").16 We therefore conclude that the districtcourt did not err by requiring the Tribes to prove the unavaila-bility of other forms of access before allowing them to crossprivate land.6. The district court did not abuse its discretion in imposing time, place, and manner restrictions on the Tribes' ability to harvest shellfish.[27] The district court also invoked equitable principles tosubject the Tribes' Treaty shellfishing right to reasonabletime, place and manner restrictions when the right is exercisedon the Growers' or Owners' property. As discussed directlyabove, the time, place, and manner restrictions present aproper use of the court's equitable powers.The court imposed the following restrictions on the Tribes'ability to harvest shellfish: 1) the Tribes' harvest is limited tofive days per year, with some increase on larger lots, for anyprivate beach not controlled by a Grower, 898 F. Supp. at1473; 2) if a Grower decides that a Tribe's proposed harvestplan is not "compatible with the Growers' farming operation,"the Grower may unilaterally modify the plan, and have "thefinal word on how a tribal harvest will be conducted," id. at1470; 3) the Grower may entirely prohibit harvest of naturalclams underneath areas cultivated for oysters, even when nooysters are then present, id. at 1471; 4) no harvest may occuron non-Grower private tidelands without a survey "to deter-mine the existence of shellfish populations," id. at 1472; and5) the "manner and method" of such a survey must be "of thetype currently in use by the State." Id.Of particular concern to the Tribes is the restriction thatallows the Growers to control access to natural clams bychoosing not to harvest them in favor of the oysters underwhich the clams are found. The Tribes describe this restrictionas a "gaping loophole" that has the capacity at the Growers'discretion to deny to them the very rights to natural clamswhich our holding confirms.The Growers' counter with the argument from the recordthat the process of harvesting natural clams from underneaththe oyster beds can seriously disrupt and suffocate their oys-ters.On reflection, the Tribes' concerns-- although certainly notfanciful--are based at this point on speculation as to whatmight happen in the future. The Growers, for example, repre-sent that "where there are substantial economic benefits to aGrower from harvesting clams, the Grower will do so. " And,"[a]s soon as the Grower does, the trial court's implementa-tion plan provides that the Tribes have the right to a share ofthose clams." The Growers say that they are " commercialfarmers--if there is money to be made, the resource assuredlywill be exploited."Under the circumstances, we believe that the district court'srestrictions do not amount at this time to an abuse of discre-tion. The district court attempted to fashion a prospectivesolution to a difficult situation by balancing the parties'respective interests. The district court's restrictions safeguardthe Tribes' right of access to the ancient fisheries, but alsoprotect the interests of the Growers and Private Owners.Importantly, in this aspect of the court's decision the court didnot use equity as the basis for its interpretation of the deci-sion, but only as a way to implement its correctly reasonedinterpretation of the Proviso. While the Tribes may not behappy with the limits imposed on their harvesting, they arestill able to effectuate their allocation under the Treaties andare not excluded from their ancient fisheries.We are confident that any future practices by the Growersthat trench inappropriately upon the Tribes' rights as con-firmed in this opinion will be adequately dealt with by the dis-trict court. The district court is the best place to manage anywrinkles that might crop up. The best way to avoid such prob-lems, of course, is for the parties constructively to worktogether to respect each others' rights.We reject the Tribes' contention that the restrictions arecontrary to the Supreme Court's decision in Puyallup Tribe v.Department of Game,
391 U.S. 392
(1968). Puyallup arosebecause a series of Washington state court decisions and stateregulations imposed discriminatory restrictions on the Tribes.The Supreme Court held "the manner of fishing, the size ofthe take, the restriction of commercial fishing, and the likemay be regulated by the State in the interest of conservation,provided the regulation meets appropriate standards and doesnot discriminate against the Indians." Id. at 398 (emphasisadded). The Tribes cite no persuasive authority, however, tosupport the application of these standards to an implementa-tion order promulgated by a Federal District Court. Puyallupapplies to restrictions imposed "by the State ," not the FederalCourts. The district court drafted the implementation order tointerpret and to enforce the Tribes' rights under the Treaties,not to restrict those rights. The motivation underlying theCourt's decision in Puyallup--state discrimination againsttribal fisheries--is simply not a factor when a district courtimposes equitable restrictions of the type present in this case.7. The district court's procedures for selecting and disqualifying special masters deny due process.[28] Shellfish III established a panel of four special masters,with one to be randomly selected to hear each dispute. 909 F.Supp. at 793. The Tribes object to two aspects of the plan: 1)Appellants' right to designate three of the four panel mem-bers; and 2) the designating parties' ability to remove specialmasters at will and without court approval. The district courtrejected the first objection outright, noting that the two partiesto a dispute each have a twenty-five percent chance of havingtheir own special master selected. The Tribes contend thatAppellants have almost identical interests: therefore, the oddsare 3-1 in Appellants' favor. In fact, the district court madea finding that "each of the other parties is adverse to theTribes, but not necessarily aligned with the others. " ShellfishIII, 909 F. Supp. at 790. Given the district court's finding thatthe Appellants are "adverse to the Tribes," we conclude thatdue process is violated if there is a seventy-five percentchance that Appellants' master will be selected. We thereforevacate this aspect of the implementation plan, and remand tothe district court to reconfigure the appointment of SpecialMasters.The Tribes also argue that allowing the parties to appointand remove the master at will compromises the independenceof the special master. Because the district court must approvethe appointment of the Masters, see Shellfish III, 909 F. Supp.at 794, we find no merit in this argument.8. The district court did not err in authorizing a spe- cial master to award damages against Tribal mem- bers.[29] The Tribes argue that Shellfish III's provision allowingthe special master to award damages against Tribal membersis legally flawed. In addition, they contend that Shellfish IIerroneously contains a provision allowing damages againstthe Tribes themselves. In Shellfish III, the district courtamended its decision to preclude damage awards against theTribes because Tribes cannot be sued without their unequivo-cal consent. See Oklahoma Tax Comm'n v. PotawatomiIndian Tribe,
498 U.S. 505, 509
(1991). The district court,and the Tribes in their motion for reconsideration, apparentlyoverlooked section 6.2 of Shellfish II's implementation order.Section 6.2 also allows special masters to award damagesagainst the Tribes. We therefore vacate the portion of section6.2 that allows for a special master to award damages againstthe Tribes. As set forth below, however, the special mastercan award damages against individual Tribal members.The Tribes concede that individuals may be bound byorders affecting their "common public rights as citizens" inlitigation to which their sovereign is a party. City of Tacomav. Taxpayers of Tacoma,
357 U.S. 320, 341
(1958). A similarissue arose in Fishing Vessel,
443 U.S. at 692
n.32, where theCourt concluded that non-party fishermen could be enjoinedfrom actions interfering with the judgment of the districtcourt. "[A] court clearly may order them to obey thatjudgment." Id. The Tribes' assertion that "the contemplatedclaims against tribal members have nothing to do with thecommon rights of state or tribal citizens" therefore is withoutmerit. On the contrary, if tribal members damage privateproperty while exercising their fishing rights, they directlyimplicate their sovereigns' interests and the district court'sjudgment.Similarly, the Tribes' argument that claims for trampledshrubs, damaged docks, or littered beaches "would raise nofederal question" is also without merit. If the damages ariseout of the exercise of fishing rights based on the districtcourt's interpretation of the Stevens Treaties, the district courthas the authority to hear such a dispute. Moreover, the disputewould arise from the same "nucleus of operative facts,"affording the court supplemental jurisdiction under 28 U.S.C.S 1367.We therefore affirm the special master's ability to recom-mend damages against individual Tribal members, but vacatesection 6.2's provision allowing damages against the Tribes.9. The district court did not err in determining that the Tribes are not entitled to attorney's fees.The Tribes request attorney's fees under 42 U.S.C.S 1988.The Tribes' request is foreclosed by United States v. Wash-ington, 813 F.2d 1020 (9th Cir. 1987) (concluding Tribes notentitled to attorney's fees in entire United States v. Washing-ton series of litigation). We therefore affirm the districtcourt's denial of fees. VII. CONCLUSIONFor the reasons discussed above, we AFFIRM IN PARTand REVERSE IN PART the district court's decisions inShellfish I, Shellfish II, and Shellfish III . We REMAND thiscase to the district court for proceedings consistent with thisopinion. In so doing, we compliment the district court for theclarity of its opinions previously rendered.We recognize the enormous impact our decision will haveon the thousands of homeowners, Tribal members, and com-mercial fishermen in the Puget Sound region. It must beremembered that we are a court of limited jurisdiction. More-over, we are bound by the Constitution's Supremacy Clausewhich accords special standing to treaties. We do not have thepower simply to "rewrite the Treaties or interpret the Treatiesin a way contrary to settled law simply to avoid or minimizeany hardship" to any of the parties in this case. Shellfish I, 873F. Supp. at 1429. This case has come a long way since the1970's when a "total lack of meaningful communication" ledto "deep distrust" between the parties. 384 F. Supp. at 329-30.The parties have apparently made sincere efforts to settle thisdispute; we hope that our decision assists and renews thateffort.AFFIRMED IN PART, REVERSED IN PART, ANDREMANDED FOR FURTHER PROCEEDINGS.The parties shall bear their own costs of this appeal.
_____________________________BEEZER, Circuit Judge, Concurring:I specially concur in the opinion of the court. I express myviews concerning the interpretation of the Stevens Treatiesand the appointment of special masters.IThe Stevens Treaties provide: The right of taking fish, at all usual and accus- tomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gath- ering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, that they shall not take shell fish from any beds staked or cultivated by citizens.Treaty of Medicine Creek, December 26, 1854, 10 Stat. 1132,Art. III (it is undisputed that this clause is substantively iden-tical in all subject treaties).The United States asks us to hold that shellfish beds, unhar-vested in the nineteenth century, were "usual andaccustomed" tribal fishing grounds in 1854. This argumentstrains even the deferential canons of Indian treaty interpreta-tion. It is, however, the law of this case and of the SupremeCourt that the reserved fishing right makes no distinctionsbetween migratory fish and shellfish or between fish runs andstatic fishing grounds. The origin of this rule of law is per-plexing.In 1974, Judge Boldt concluded that the Indian Tribes hadtreaty fishing rights which entitled them to harvest up to fiftypercent of fish passing through the tribes' fishing grounds.United States v. Washington, 384 F. Supp. 312 (W.D. Wash.1974) ("Boldt Decision"), aff'd, 520 F.2d 676 (9th Cir. 1975),cert. denied,
423 U.S. 1086
(1976). The Supreme Court"substantially upheld" the Boldt Decision in Washington v.Fishing Vessel Ass'n,
443 U.S. 658
(1978). United States v.Suquamish Indian Tribe, 901 F.2d 772, 773 (9th Cir. 1990).The Boldt Decision held that the fishing right is "not limitedas to species of fish." Boldt Decision, 384 F. Supp. at 401.Fishing Vessel held that tribes have a right to equalamounts of fish "taken from runs of fish that pass through theIndians' usual and accustomed fishing grounds." Fishing Ves-sel,
443 U.S. at 689
. A tribe's rights are defined in case lawby the grounds the tribe fished and not the particular speciestaken. The Indians reserved the "right to take a share of eachrun of fish that passes through tribal fishing areas." Id. at 679.Implicit in the Fishing Vessel opinion is the principle that tolimit access strictly to historical fishing grounds and specieswould render the right to fish a nullity because citizens couldharvest all fish downstream. Similarly, in United States v.Winans,
198 U.S. 371
(1905), the Court determined that theissuance of a license to erect a fishing wheel where the devicedeprived Indians of the run of fish that passed through theirusual and accustomed fishing grounds was impermissible.The underpinning of the Court's interpretation of the Ste-vens Treaties should not apply to shellfish because they are,with the exception of crustaceans, immobile. There can be nodevice that prevents the migration of immobile shellfish to,through or from the tribes' usual and accustomed fishinggrounds.The burden imposed by our opinion cannot be overstated.The record in this case makes abundantly clear that sincetreaty times a vibrant shellfish industry has developed in theState of Washington along the saltwater beaches of the PacificOcean and along tidelands adjoining the inland waters ofPuget Sound.The labors of a modern day shellfish producer are vividlyrecounted in The Seattle Times, May 1, 1997, p. B-1, as fol-lows: After all, one of the first skills he found necessary was the patience to stare for 10 hours at a time at a leathery, slithering geoduck neck sticking out of a plastic bucket full of sand -- waiting to catch the unlovely bivalve in its private, and very erratic, act of spawning. Complicating the task is the fact that geoducks must spawn before hatchery breeders, such as Dahman, can tell the males from the females. "It's maddening stuff. These geoducks can make a long day of it for you," says Dahman. His tattered logger's clothing and irreverent rants about biolo- gists and bureaucrats belie the mix of genetics, mechanical engineering, global marketing and money going into this venture. "The idea here is to grow geoducks where we've never been able to grow anything before. We're still crawling at all this." For Dahman, the first baby steps will come this fall when he harvests the initial crop of hatchery- reared geoducks planted on his south Puget Sound tidelands outside of Shelton four years ago. Dahman Shellfish and its neighbor, Taylor United, one of the state's biggest shellfish growers, are believed to be the first in the U.S. commercially rais- ing geoducks -- a forerunner, predict aquaculture experts, to eventually breeding such edible if weird- looking creatures as sea cucumbers and sea urchins in the lab.Citizens -- as well as tribal members and the state -- havelong set aside suitable tidelands acquired by purchase, byinclusion in reservation boundaries or by dedications adjoin-ing state lands to the cultivation of clams, oysters and otherspecies of shellfish. The opinion we file today will open thesetidelands to the harvest of commercially valuable shellfish bythe Tribes in common with the citizens as a matter of treatyright.It is now clear that the Tribes are granted access to tide-lands which contain cultivated shellfish produced by theGrowers. The details of how much and when the Tribes mayharvest shellfish from such lands remains unresolved. Weassign the Growers "the burden of proving pre-enhancementharvest versus post-enhancement harvest." The district courtwill be faced with the application of this scheme. Our sugges-tion shifts the law that the party asserting a treaty right mustprove that right. See, e.g., United States v. Lummi IndianTribe, 841 F.2d 317, 318 (9th Cir. 1988) (a tribe assertingusual and accustomed fishing grounds has the burden to pro-duce evidence that a particular location was customarily usedat treaty time). The assignment of the burden of proof is criti-cal. The district court, after hearing testimony, determinedthat it "would be very difficult -- if not impossible -- todevelop a `snapshot' of existing shellfish beds at the timecommercial development commenced on the Growers'property." Shellfish II, 898 F. Supp. at 1462. Where a dis-puted fact cannot be proven, the placement of the burden ofproof is dispositive. The Growers' burden is heavy and thedistrict court's assignment is daunting.The tension between grower and Indian under treaty provi-sions is clear. One will not grow shellfish on lands bearingnatural shellfish to provide subsistence to the other withoutcompensation for the damage occurring to the cultivatedshellfish. The majority asks the parties to "constructively . . .work together to respect each others' rights." I fear the timefor that has passed. The fact that the Tribes are concernedabout the Growers' "gaping loophole" to deny them access tonaturally occurring shellfish by never allowing their beds tobe free of oyster crops evidences the tension between the par-ties. Burden of proof and access issues that remain unresolvedin the opinion we file today guarantee continuing disputesbetween the tribes and the citizens of Washington State.Property rights, which have been undisturbed for genera-tions, are encumbered by our decision today. In Vanhorne'sLessee v. Dorrance, 2 U.S. (2 Dal.) 304, 310, 1 L.Ed. 391(Cir. Ct. Pa. Dist. 1795), Justice Patterson observed: From these passages it is evident; that the right of acquiring and possessing property, and having it pro- tected, is one of the natural, inherent, and unalien- able rights of man. Men have a sense of property: Property is necessary to their subsistence and corre- spondent to their natural wants and desires; its secur- ity was one of the objects, that induced them to unite in society. No man would become a member of a community, in which he could not enjoy the fruits of his honest labour and industry. The preservation of property then is a primary object of the social com- pact, and, by the late Constitution of Pennsylvania, was made a fundamental law.Property rights, so fundamental to American government,need not be trampled upon. Exclusive use of private tidelandsby commercial growers should not deprive the Tribes of theirtreaty share of shellfish; the Tribes could be allocated half ofthe naturally occurring shellfish without disturbing the hard-earned and long-held property rights of private growers.Shares of the shellfish taken, of course, need not be deter-mined by the place where the shellfish are taken. 1 Thus, atribal share of shellfish could come from reservation land,government land or private tidelands acquired by the tribe.Survival of Washington's shellfish industry depends uponthe growers' ability to dedicate tidelands to exclusive use.This cannot be done under existing case law interpretation ofthe Stevens Treaties. We are, however, bound, by the author-ity of the Supreme Court and the law of the case, to that inter-pretation. Exclusive use of tidelands will be possible if theSupreme Court recognizes the shellfish proviso with respectto "cultivation" and makes clear the distinctions betweenmigratory fish and shellfish; between fish runs and static fish-ing grounds; and between natural shellfish and cultivatedshellfish.IIThe district court held that, upon proper showing and sub-ject to time, place and manner restrictions, the Tribes are enti-tled to cross private property in order to exercise theirshellfishing rights. United States v. Washington, 909 F. Supp.787, 792 (W.D. Wash. 1995). If a dispute arises between aproperty owner and a Treaty Tribe, concerning the exercise ofthe Shellfish Treaty right, the matter is to be resolved by aspecial master. Id. The Tribes, the State of Washington, theShellfish Growers and the Private Property Owners each arepermitted to designate a special master, one of which is to beselected at random to resolve a pending dispute. Id. at 793-94.The special master is to issue a written report and recommen-dation subject to approval and adoption by the district court.Id. at 794. The opinion filed today holds that "due process isviolated" because "there is a seventy-five percent chance thatAppellants' master will be selected." We vacate and remandto the district court to reconfigure the appointment of specialmasters.Fed. R. Civ. P. 53(a), which governs the appointment ofspecial masters, states in pertinent part, "[t]he court in whichany action is pending may appoint a special master therein."Reference to a master "shall be the exception and not therule" and shall be made "upon a showing that some excep-tional condition requires it." Burlington Northern v. Dep't ofRevenue, 934 F.2d 1064, 1071 (9th Cir. 1991) (quoting Fed.R. Civ. P. 53(b)). "The use of masters is `to aid judges in theperformance of specific judicial duties, as they may arise inthe progress of a cause,' and not to displace the court." LaBuy v. Howes Leather Co.,
352 U.S. 249, 256
(1956) (quotingEx Parte Peterson,
253 U.S. 300
(1920)). "Litigants are enti-tled to a trial by the court, in every suit, save where excep-tional circumstances are shown." Id. at 258. "Congestion initself is not such an exceptional circumstance as to warrant areference to a master." Id. at 259; see also Wright & Miller,Federal Practice and Procedure: Civil 2d S 2601 (1995) (theappointment of a master is for the purpose of assisting thecourt to obtain facts). "The Courts have tended to read Rule53 narrowly, closely circumscribing the range of circum-stances in which reference to a master is appropriate."Burlington Northern, 934 F.2d 1071 (quoting In re Armco,770 F.2d 103, 105 (8th Cir. 1985)).Referral to a special master is reviewed for an abuse of dis-cretion. Burlington Northern, 934 F.2d at 1071 (citing UnitedStates v. Suquamish Indian Tribe, 901 F.2d 772, 774 (9th Cir.1990)). We have affirmed the use of special masters repeat-edly in the Stevens Treaty cases. See, e.g., Suquamish IndianTribe, 901 F.2d at 775 (noting that we could "not think of amore comprehensive and complex case than" the Boldt deci-sion and its successors); see also United States v. Washington,730 F.2d 1314 (9th Cir. 1984). In the present matter, however,the district court made no finding that disputes regardingwhether tribes must pass over private land to harvest shellfishis complex or extraordinary. Indeed, disputes are likely topresent straightforward trespass and property questions.Because the district court did not make a finding of complex-ity or exceptional circumstance as required under Rule 53,referral to a special master is not yet appropriate.Neutrality of the special master is also a paramount con-cern. In the Stevens Treaty cases, prior referrals have been toa magistrate judge, not a master selected by the parties. See,e.g., United States v. Washington, 626 F. Supp. 1401 (W.D.Wash. 1985). The Supreme Court has long held that "due pro-cess implies a tribunal both impartial and mentally competentto afford a hearing." Jordan v. Massachusetts,
225 U.S. 167
,176 (1912); see also Marshall v. Jerrico, Inc.,
446 U.S. 238
,242 (1980) ("The Due Process Clause entitles a person to animpartial and disinterested tribunal in both civil and criminalcases."). The neutrality requirement helps guarantee that life,liberty or property will not be taken on the basis of an errone-ous or distorted conception of the facts or the law and pre-serves the appearance and reality of fairness. Marshall, 446U.S. at 242. A party may establish that he has been denied hisconstitutional right to a fair hearing before an impartial tribu-nal by a showing of actual bias or the adjudicator's pecuniaryor personal interest in the outcome. Stivers v. Pierce, 71 F.3d732 (9th Cir. 1995). In addition to the constraints of due pro-cess, Canon 1 of the Code of Conduct for United StatesJudges sets the integrity and independence of the judiciary asan indispensable goal. Administrative Office of U.S. Courts,Code of Judicial Conduct for United States Judges (1997).The masters here are selected by the parties, presumablybecause the candidates are likely to rule favorably. Whethereach side is permitted to designate one or many potential can-didates, the result is a master that is chosen because of a realor perceived bias. Even if the district court ultimatelyapproves the selection of the master and adopts the master'sreport and recommendation, that does not cure the error. Aproperty owner subject to an unforeseen access easement ora tribe denied access to a harvest will find little solace in thejudge's signature adopting the special master's findings.I would hold that the special master selection processadopted by the district court violates due process. I wouldremand to the district court to make findings supporting thenecessity for a master; to appoint an independent special mas-ter and to give special consideration to the appointment of amagistrate judge. the end
___________________________FOOTNOTES 1 The Tribes are the following: the Tulalip, Puyallup, Squaxin Island,Makah, Muckleshoot, Upper Skagit, Nooksack, Nisqually, Lummi, Sko-komish, Port Gamble S'Klallam, Lower Elwha S'Klallam, JamestownS'Klallam, Suquamish, Swinomish, Hoh, Stillaguamish, Sauk Suiattle,and Quileute. The Yakima Tribe, which participated in the proceedingsbelow, did not appeal the district court's decision that the right to takeshellfish is not reserved in its treaty with the United States.2 Each of the Tribes involved in this proceeding is the successor-in-interest to one or more of these treaties: Treaty of Medicine Creek,December 26, 1854, 10 Stat. 1132; Treaty of Point Elliott, January 22,1855, 12 Stat. 927; Treaty of Point No Point, January 26, 1855, 12 Stat.933; Treaty with the Makah, January 31, 1855, 12 Stat. 939; Treaty ofOlympia, July 1, 1855, 12 Stat. 971.3 Anadromous fish are fish that migrate up rivers from the sea to breedin fresh water (i.e., salmon).4 The other six cases are: United States v. Winans,
198 U.S. 371
(1905);Seufert Bros. Co. v. United States,
249 U.S. 194
(1919); Tulee v. Washing-ton,
315 U.S. 681
(1942); Puyallup Tribe v. Department of Game, 391U.S. 392 (1968); Department of Game v. Puyallup Tribe,
414 U.S. 44
(1973); Puyallup Tribe v. Department of Game,
433 U.S. 165
(1977).None of these cases involved interpretation of the Shellfish Proviso.5 The action was originally filed against only Washington. The followinggroups subsequently intervened in the proceeding: the Puget Sound Shell-fish Growers, representing commercial shellfish growers; the Alexandergroup and Adkins group of private tideland owners; and a group of privateproperty owners affiliated with the United Property Owners of Washing-ton ("UPOW"). The district court denied motions to intervene filed by theInner Sound Crab Association, Dungeness Crab Harvesters Association,and the Washington Harvest Divers Association. That ruling was recentlyaffirmed by this Court. See United States v. Washington, 86 F.3d 1499(9th Cir. 1996).6 The State of Oregon has filed an amicus brief joining Washington inthis argument.7 The deep-water species include: geoduck (pronounced "gooey duck"--a kind of giant clam), sea urchin, sea cucumber, and certain species of craband shrimp.8 The court declared that only "those beds whose existence is entirelydue to the natural propagation of the species" are subject to the Tribes'Treaty rights. This declaration excluded from Tribal harvest: 1) beds cre-ated from scratch; 2) beds enhanced by planting, netting or seeding pre-existing shellfish beds; 3) beds enhanced by using predator control or roto-tilling in or around preexisting beds; and 4) "beds whose existence is dueto the Grower's efforts, albeit passively, such as the `natural' migration ofshellfish from an artificial bed to a new spot." Shellfish II, 898 F. Supp.at 1462.9 The Imperial Irrigation District case provides little support for theAppellants. First, it is currently pending on appeal. Second, it is stayedpending settlement discussions. See 799 F. Supp. at 1068.10 UPOW's expert, Dr. Thomas, relied solely on what he called "tribalhousehold income" and compared it to a moderate living standard by ref-erence to the Bureau of the Census income data for non-Indian house-holds. 873 F. Supp. at 1446. The district court concluded that this analysiswas flawed because it relied only on income, making it a "single-indicator" analysis. Id.11 Even if we were to consider Tribal income from casino operations--as the Appellants ask us to do--we would not be left with a "definite andfirm conviction" that the district court's findings were erroneous.12 For example, if ten clams per square foot were a density sufficient tosupport a commercial livelihood at the time that enhancement began, andif a 100 square foot Grower's bed yielded ten clams per square foot priorto the Grower's efforts to enhance the output (1,000 clams), and that samebed now produces fifty clams per square foot as a result of the Grower'slabor (5,000 clams), the Tribes would be entitled to fifty percent of the1,000 clams or 500 clams.13 One way to do this would be to compare a Grower's bed's earliestshellfish production figures with the bed's current output. This could serveas one of the bases by which to calculate the proper allocation amount.14 Because we conclude that the district court clearly erred, we do notaddress the Tribes' contention that they were unfairly surprised and unableto present evidence on this issue. On remand, the Tribes will have anopportunity to present such evidence.15 This decision amended the court's decision in Shellfish II, which orig-inally held that the Tribes had no right of private upland access at all. 989F. Supp. at 1473.16 The Tribes and the United States also urge us to read into the absenceof upland access showing a "reasonableness" requirement. We decline todo so, but we direct the district court, upon remand, to clarify its orderwith regard to this issue.1 Fishing Vessel makes this point clear. The Court held that "fish takenby treaty fisherman off the reservations and at locations other than `usualand accustomed' sites . . . [are] to be counted as part of the Indians'[treaty] share." Fishing Vessel,
443 U.S. at 687
n. 29.