UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOWER ELWHA BAND OF
S'KLALLAMS; JAMESTOWN BAND OF
S'KLALLAMS; PORT GAMBLE
BAND OF S'KLALLAMS; and the
SKOKOMISH INDIAN TRIBE,
Plaintiffs-Appellees,
v.
LUMMI INDIAN TRIBE,
Defendant-Appellant,
No. 98-35964
and
D.C. No.
PUYALLUP TRIBE; MAKAH INDIAN
CV-70-09213 BJR
TRIBE; TULALIP TRIBE; SUQUAMISH
OPINION
INDIAN TRIBE; STATE OF
WASHINGTON; CONFEDERATED
BANDS AND TRIBES OF THE YAKIMA
INDIAN NATION; MUCKLESHOOT
INDIAN TRIBE; QUINAULT INDIAN
NATION; INTERESTED ATTORNEY;
NISQUALLY INDIAN TRIBE;
SWINOMISH INDIAN TRIBAL
COMMUNITY; HOH INDIAN TRIBE,
Interested Parties.
Appeal from the United States District Court
for the Western District of Washington
Barbara J. Rothstein, Chief District Judge, Presiding
Argued and Submitted
September 12, 2000--Seattle, Washington
Filed December 13, 2000
15921
Before: Mary M. Schroeder, Robert R. Beezer and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Beezer
_________________________________________________________________
COUNSEL
Harry L. Johnson, Raas, Johnson & Stuen, P.S., Bellingham,
Washington, for the defendant-appellant.
Kathryn J. Nelson, Eisenhower & Carlson, PLLC, Tacoma,
Washington, for the plaintiffs-appellees.
_________________________________________________________________
OPINION
BEEZER, Circuit Judge:
The Lummi Indian Tribe appeals from the final judgment
entered in favor of the Lower Elwha Band of S'Klallams, the
Jamestown Band of S'Klallams, the Port Gamble Band of
S'Klallams and the Skokomish Indian Tribe (collectively "the
Four Tribes"). The district court concluded that Judge Boldt,
in United States v. Washington, 384 F. Supp. 312, 332 (W.D.
Wash. 1974) (Boldt, J.) (hereinafter "Decision I"), aff'd, 520
F.2d 676 (9th Cir. 1975), did not intend for the Lummi's usual
and accustomed fishing grounds and stations to include the
Strait of Juan de Fuca, Admiralty Inlet or the mouth of the
Hood Canal. We have jurisdiction pursuant to 28 U.S.C.
S 1291. We conclude that Judge Boldt intended to: (1)
exclude the Strait of Juan de Fuca and the mouth of the Hood
Canal and (2) include Admiralty Inlet in the Lummi's usual
15926
and accustomed fishing grounds and stations. We affirm in
part and reverse in part.
I
This appeal involves the scope of fishing rights secured by
the Lummi Indian Tribe in the 1855 Treaty of Point Elliott.
Tribes who were party to the Treaty, including the Lummi,
reserved the right to fish at all "usual and accustomed grounds
and stations." Act of Jan. 22, 1855, Art. V, 12 Stat. 927, 928.
The term "usual and accustomed grounds and stations"
includes "every fishing location where members of a tribe
customarily fished from time to time at and before treaty
times, however distant from the then usual habitat of the tribe,
and whether or not other tribes then also fished in the same
waters." Decision I, 384 F. Supp. at 332.
The United States filed the underlying action in Decision I,
on its own behalf and as trustee for several Western Washing-
ton Indian tribes, to enforce compliance by the State of Wash-
ington with treaty fishing rights. See Decision I, 384 F. Supp.
at 327-28. As part of Decision I, Judge Boldt determined the
various tribes' usual and accustomed fishing grounds and sta-
tions. With respect to the Lummi, Judge Boldt described their
usual and accustomed grounds and stations as follows:
45. Prior to the Treaty of Point Elliott, the Lummi,
Semiahmoo and Samish Indians had been engaged in
trade in salmon, halibut and shellfish with other Indi-
ans and with non-Indians. This trade continued after
the treaty. At the time of the treaty they maintained
prosperous communities by virtue of their ownership
of lucrative saltwater fisheries. The single most valu-
able fish resource was undoubtedly the sockeye,
which the Lummis were able to intercept in the
Straits on the annual migration of the sockeye from
the ocean to the Fraser River. Lummi Indians devel-
oped a highly efficient technique, known as reef net-
15927
ting, for taking large quantities of salmon in salt
water. Aboriginal Indian "reef netting" differs from
present methods and techniques described by the
same term. The Lummis had reef net sites on Orcas
Island, San Juan Island, Lummi Island and Fidalgo
Island, and near Point Roberts and Sandy Point.
When nature did not provide optimum reef condi-
tions the Indians artificially created them. Reef net-
ting was one of the two most important economic
activities engaged in by these Indians, the other
being the sale of dog fish oil. These Indians also
took spring, silver and humpback salmon and steel-
head by gill nets and harpoons near the mouth of the
Nooksack River, and steelhead by harpoons and bas-
ketry traps on Whatcom Creek. They trolled the
waters of the San Juan Islands for various species of
salmon.
46. In addition to the reef net locations listed
above, the usual and accustomed fishing places of
the Lummi Indians at treaty times included the
marine areas of Northern Puget Sound from the Fra-
ser River south to the present environs of Seattle,
and particularly Bellingham Bay. Freshwater fish-
eries included the river drainage systems, especially
the Nooksack, emptying into the bays from Bound-
ary Bay south to Fidalgo Bay.
Id. at 360 (citations to the record omitted) (emphasis added).
Almost fifteen years after Decision I, the Four Tribes initi-
ated Subproceeding 89-2 by filing a request for determination,
pursuant to the continuing jurisdiction of the court.1 The Four
_________________________________________________________________
1 Paragraph 25 of the injunction entered by Judge Boldt in Decision I
provides in pertinent part:
The parties or any of them may invoke the continuing jurisdiction of
this court in order to determine:
15928
Tribes sought a determination that the Lummi were violating
Decision I by fishing in areas outside of their adjudicated
usual and accustomed grounds and stations, specifically in the
Strait of Juan de Fuca, Admiralty Inlet and the mouth of the
Hood Canal. The Four Tribes claim these same fishing areas
as part of their usual and accustomed grounds and stations.
The Four Tribes and the Lummi both moved for summary
judgment as to whether the disputed areas were contained
within the Lummi's usual and accustomed grounds and sta-
tions. Judge Coyle, a visiting judge assigned to preside at
many of the Decision I subproceedings, determined that Judge
_________________________________________________________________
a. whether or not the actions, intended or effected by any party
(including the party seeking a determination) are in confor-
mity with Final Decision # I or this injunction;
b. whether a proposed state regulation is reasonable and neces-
sary for conservation;
c. whether a tribe is entitled to exercise powers of self-
regulation;
d. disputes concerning the subject matter of this case which the
parties have been unable to resolve among themselves;
e. claims to returns of seized or damaged fishing gear or its
value, as provided for in this injunction;
f. the location of any of a tribe's usual and accustomed fishing
grounds not specifically determined by Final Decision # I;
and
g. such other matters as the court may deem appropriate.
In order to invoke such jurisdiction, the party shall file with the
clerk of this court and serve upon all other parties (through their
counsel of record, if any) a "Request for Determination" setting
forth the factual nature of the request and any legal authorities
and argument which may assist the court, along with a statement
that unsuccessful efforts have been made by the parties to resolve
the matter, whether a hearing is required, and any factors which
bear on the urgency of the request.
Decision I, 384 F. Supp. at 419.
15929
Boldt had not intended the disputed areas to be included
within the Lummi's usual and accustomed grounds and sta-
tions. On February 15, 1990, Judge Coyle granted the Four
Tribes' motion for summary judgment and denied the
Lummi's motion. Although no apparent issues remained
pending, a final judgment was not entered.
Instead, the Lummi filed an amended response to the Four
Tribes' request for determination and a cross-request for
determination on April 12, 1990.2 The cross-request sought a
determination that the Lummi's usual and accustomed
grounds and stations should be expanded to include the three
disputed areas.3
Based on the Lummi's "expansion" theory, several years of
discovery ensued, after which the parties again filed cross-
motions for summary judgment. By this point, Subproceeding
89-2 had been transferred to Judge Rothstein. On February 7,
1994, Judge Rothstein denied both summary judgment
motions. Judge Rothstein concluded that, despite the weak-
ness of the Lummi's evidence, genuine issues of material fact
remained as to whether the disputed areas should be added to
the Lummi's usual and accustomed grounds and stations.
During the next few years, the parties were heavily
_________________________________________________________________
2 The Lummi's "amended" response contained no actual amendments;
rather, it stated that "[t]he Answer and Affirmative Defenses previously
pled . . . are not changed, and will not, in the interest of the conservation
of trees and filing cabinets, be repeated here."
3 The cross-request for determination was purportedly filed pursuant to
the authority of a minute order entered by Magistrate Judge Weinberg on
June 28, 1989. The text of that order: (1) directed the parties to file cross-
motions for summary judgment as to the Lummi's usual and accustomed
grounds and stations and the availability of equitable defenses; (2) stated
that further discovery would wait until after the decision on the summary
judgment motions; and (3) recognized that the Lummi intended to file
amended pleadings, but that responses to those pleadings would not be due
until after a decision on the summary judgment motions.
15930
involved in the litigation of other subproceedings. Conse-
quently, the trial in Subproceeding 89-2 was repeatedly
delayed. In the meantime, an opinion was filed in Muckle-
shoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir.
1998).
One month prior to the now seemingly-firm trial date of
June 15, 1998, the Lummi moved to vacate that date and to
reopen discovery, arguing essentially that Muckleshoot
required reframing of the issues. According to the Lummi, the
correct focus was no longer whether the disputed areas should
be added to the usual and accustomed grounds and stations,
but rather whether Judge Coyle correctly determined in 1990
that the areas were not intended by Judge Boldt to be included
in the findings of Decision I. The Lummi argued that Judge
Coyle impermissibly relied on latter-day evidence that was
not presented to Judge Boldt in order to determine Judge
Boldt's intent.
The Four Tribes opposed the Lummi's motion, and moved
to dismiss the Lummi's cross-request for determination. Judge
Rothstein denied the Lummi's motion to vacate the trial date
and later entered an order setting a briefing schedule to
resolve the outstanding issues. The Lummi then moved to dis-
miss or, in the alternative, for summary judgment.
On September 1, 1998, Judge Rothstein denied the
Lummi's alternative motions and granted the Four Tribes'
motion to dismiss. Judge Rothstein applied the law of the case
doctrine and accepted Judge Coyle's 1990 decision that Judge
Boldt did not intend to include the Strait of Juan de Fuca,
Admiralty Inlet or the mouth of the Hood Canal in the
Lummi's usual and accustomed grounds and stations. Final
judgment was entered on September 2, 1998, dismissing Sub-
proceeding 89-2. The Lummi timely appeal.
II
At the outset, the Four Tribes raise two arguments as to
why we should not review Judge Coyle's 1990 summary
15931
judgment order, which established that Judge Boldt did not
intend to include the disputed areas within the Lummi's usual
and accustomed grounds and stations. First, the Four Tribes
argue that the order was final in 1990, thus any attempt by the
Lummi to appeal now is untimely. Second, the Four Tribes
argue that Judge Rothstein's application of the law of the case
doctrine insulates Judge Coyle's order from review. We
address each argument in turn.
A.
According to the Four Tribes, Judge Coyle's 1990 decision
was a final one, from which the Lummi may no longer appeal.
Thus, the Four Tribes argue that we are limited to reviewing
only Judge Rothstein's application of the law of the case doc-
trine and not the merits of the usual and accustomed grounds
and stations dispute.
[1] Section 1291 confers jurisdiction on us to hear "appeals
from all final decisions of the district courts. " 28 U.S.C.
S 1291. "A final decision is one that `ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.' " Does v. Advanced Textile Corp., 214 F.3d 1058,
1065-66 (9th Cir. 2000) (quoting Coopers & Lybrand v. Live-
say, 437 U.S. 463, 467 (1978)). We observe that"[a] ruling
is final for purposes of S 1291 if it (1) is a full adjudication
of the issues, and (2) clearly evidences the judge's intention
that it be the court's final act in the matter." National Distri-
bution Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433
(9th Cir. 1997) (citation and internal quotation marks omit-
ted).
The Lummi contend that Magistrate Judge Weinberg's
minute order is evidence that Judge Coyle's subsequent order
was not intended to be final. According to the Lummi, the
minute order contemplated the filing of amended pleadings
after the summary judgment motions were resolved. This con-
tention is unavailing. The order states that " [r]esponses [to
15932
the Lummi's amended pleadings] are not due until after a
decision on the motions." The order does not state that the
amended pleadings themselves may be filed after disposition
of the summary judgment motions. Moreover, when read in
context, it is clear that Magistrate Judge Weinberg's minute
order was intended to save the parties the effort and expense
of preparing additional discovery and responses, if such were
not necessary. Once Judge Coyle granted the Four Tribes
summary judgment, further litigation was no longer neces-
sary.
[2] Even though Judge Coyle's disposition of the summary
judgment motions left no issues to be resolved, the Lummi
amended their pleadings to assert a cross-request for determina-
tion.4 Both parties then continued to actively litigate, with no
opposition from the district court.5 Most importantly, no final
judgment was entered. See Fed. R. Civ. P. 58 ("Every judg-
ment shall be set forth on a separate document.").
Although Rule 58 requires the entry of a separate docu-
ment, the existence of such a document is not a prerequisite
to appellate jurisdiction under S 1291. See Bankers Trust Co.
v. Mallis, 435 U.S. 381, 385 (1978) (per curiam). Neverthe-
less, Rule 58 serves to protect parties from uncertainty. See,
e.g., Ingram v. Acands, Inc., 977 F.2d 1332, 1339 (9th Cir.
1992) ("[A] party should not have to run the risk that the
order he may choose to appeal from may not be the same
order a court of appeals decides he should have chosen.").
_________________________________________________________________
4 Judge Rothstein's "Order Denying Lummi's Motion to Dismiss and for
Summary Judgment and Granting the Four Tribes' Motion to Dismiss"
erroneously asserted that the Lummi filed their cross-request for determi-
nation before Judge Coyle issued his decision. The Lummi, however, did
not file their amended pleading until approximately two months after
Judge Coyle granted summary judgment to the Four Tribes.
5 If the Four Tribes believed Judge Coyle's ruling constituted a final
judgment, they could have moved to dismiss the Lummi's amended
response and cross-request for determination at the time it was filed.
15933
[3] In light of the purpose of Rule 58, we conclude that
Judge Coyle's 1990 summary judgment order was not final
because no separate judgment was entered.
B.
[4] The Four Tribes next argue that Judge Rothstein's
application of the law of the case doctrine insulates Judge
Coyle's summary judgment order from review. This argument
also lacks merit. Judge Coyle's decision, which was not final,
merged into the final judgment entered on September 2, 1998,
and may be challenged in this appeal. See Hook v. Ariz. Dep't
of Corrections, 107 F.3d 1397, 1401 (9th Cir. 1997) ("A party
does not lose the right to appeal an interlocutory order by not
immediately appealing and waiting for the final judgment.
The interlocutory order merges in the final judgment and may
be challenged in an appeal from that judgment.") (citation and
internal quotation marks omitted).
III
We address the merits of this appeal. The Lummi challenge
both Judge Coyle's summary judgment order and Judge Roth-
stein's refusal to revise that order. We address each argument
in turn.
A.
The Lummi argue that Judge Coyle erred in granting sum-
mary judgment to the Four Tribes because Judge Boldt
intended to include the Strait of Juan de Fuca, Admiralty Inlet
and the mouth of the Hood Canal within the Lummi's usual
and accustomed fishing grounds and stations. This court
reviews a grant of summary judgment de novo. See Balint v.
Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en banc).
[5] The question before Judge Coyle was whether the
Lummi's usual and accustomed grounds and stations, as
15934
expressed in Finding of Fact 46 of Decision I -- "the marine
areas of Northern Puget Sound from the Fraser River south to
the present environs of Seattle" -- included the disputed
areas. The phrase used by Judge Boldt is ambiguous because
it does not delineate the western boundary of the Lummi's
usual and accustomed grounds and stations.6 "When interpret-
ing an ambiguous prior judgment, the reviewing court should
`construe a judgment so as to give effect to the intention of
the issuing court.' " Muckleshoot, 141 F.3d at 1359 (quoting
Narramore v. United States, 852 F.2d 485, 490 (9th Cir.
1988)).
[6] To determine whether Judge Boldt intended to include
the disputed areas within the Lummi's usual and accustomed
grounds and stations, Judge Coyle looked at the evidence
presented to Judge Boldt, specifically those exhibits which
Judge Boldt referred to in Findings of Fact 45 and 46. These
exhibits consisted of summaries and reports prepared by Dr.
Barbara Lane, a noted anthropologist who testified as an
expert witness in Decision I, as well as maps that she relied
on in her testimony. These exhibits were submitted for Judge
Coyle's review via a declaration prepared by Dr. Lane. In that
declaration, Dr. Lane identified and authenticated the exhibits.
Dr. Lane also made the following statements with respect to
what she intended at the time of Decision I:
4. The Straits referred to in my report -- USA
Exhibit 30, at p. 11 -- although not specifically
denominated therein, were Haro, Rosario and
Georgia Straits and I did not intend the reference
to include the Strait of Juan de Fuca. * * *
5. At the time of my 1973 reports and testimony,
I had not reached, expressed or intended any
_________________________________________________________________
6 Although the Lummi attempt to characterize Findings 45 and 46 as
unambiguous, they concede that "[t]here may be some ambiguity about
the westerly limit of Lummi fishing rights[.] " See Lummi Br. at 12 n.5.
15935
conclusion that the treaty-time [usual and accus-
tomed] fishing grounds and stations of the pre-
decessor Indians to the present Lummi Tribe
included (1) the Strait of Juan de Fuca, (2) the
open marine water beyond the immediate near
shore area southwesterly of the San Juan Islands
and westerly of northern Whidbey Island, or the
Admiralty Inlet passageway along the west side
of Whidbey Island.
* * *
In the time available before the presently sched-
uled court hearing on this subproceeding, I am
unable to formulate a conclusion on treaty-time
existence or extent of fishing activity by those
Lummi predecessors in those waters.
6. I do not consider the term "Northern Puget
Sound" as used in the Court's Finding No. 46 or
any other language in the Court's Findings to
include the Strait of Juan de Fuca, or the Hood
Canal area waters southerly of a line from Olele
Point to the tip of Foulweather Bluff.
[7] The Lummi argue that Judge Coyle improperly consid-
ered Dr. Lane's declaration because it constituted latter-day
testimony which, after Muckleshoot, is not proper evidence of
Judge Boldt's intent. Muckleshoot held -- in a different sub-
proceeding, but one which also involved the Lummi and Dr.
Lane -- that "to treat the definition of the phrase [`present
environs of Seattle'] first articulated by Dr. Lane in her
August 1995 deposition as having been adopted by Judge
Boldt in 1972 is pure speculation. Accordingly, the district
court erred by considering Dr. Lane's latter-day testimony as
evidence of Judge Boldt's intended meaning." 141 F.3d at
1359-60. Elsewhere in Muckleshoot, the court approved of the
statement that "the only matter at issue is the meaning of
15936
Judge Boldt's Finding No. 46 and the only relevant evidence
is that which was considered by Judge Boldt when he made
his finding." Id. at 1360. In the final sentence of the opinion,
however, the court left open the possibility that extrinsic evi-
dence might be appropriately considered in determining Judge
Boldt's intent: "While evidence that was before Judge Boldt
when he made his finding is obviously relevant, there may be
other evidence indicative of the contemporary understanding
of `the present environs of Seattle.' " Id. at 1360.
[8] The facts of Muckleshoot are distinguishable. There, Dr.
Lane's latter-day testimony was "the only authority capable of
clarifying the meaning of that phrase [`present environs of
Seattle']." Muckleshoot, 141 F.3d at 1360. Here, although
Judge Coyle considered Dr. Lane's declaration, it is clear that
he did not rely on it. Instead, he focused directly on the exhib-
its attached to Dr. Lane's declaration, USA-20 and USA-30,
which were presented to Judge Boldt in Decision I.
[9] Judge Coyle's order makes it clear that he properly
relied on evidence that was put before Judge Boldt, and not
upon latter-day testimony. For instance, Judge Coyle stated
that "the court examines the evidence presented to Judge
Boldt in connection with the underlying proceeding."
(Emphasis added.) Judge Coyle also concluded that"[t]here
is no question in the court's mind from the evidence presented
to Judge Boldt that the Lummis' usual and accustomed fish-
ing places were not intended to include the Strait of Juan de
Fuca." (Emphasis added.) We hold that Judge Coyle's opinion
does not run afoul of Muckleshoot because there is no indica-
tion that Judge Coyle imputed Dr. Lane's later-announced
intentions to Judge Boldt.
The Lummi also argue that Judge Coyle erred by not con-
sidering all of the evidence submitted to Judge Boldt in Deci-
sion I in context. The Lummi contend that Judge Boldt
intended to define fishing areas in a broad and general way.
15937
They rely on a section of Dr. Lane's 1972 summary, in which
she wrote:
Although there are extensive records and oral history
from which many specific fishing locations can be
pinpointed, it would be impossible to compile a
complete inventory of any tribe's usual and accus-
tomed grounds and stations. Such an inventory is
possible only by designating entire water systems.
Dr. Lane also indicated that "[t]here are a variety of reasons
why any listing of usual and accustomed fishing sites must be
incomplete and thus give a spurious kind of accuracy."
Although this argument is somewhat compelling, it ignores
the fact that evidence was also presented by Dr. Lane as to the
specific locations of the Lummi's usual and accustomed
grounds and stations. For instance, Dr. Lane described the
principal fisheries of the Lummi as including several named
areas, "Point Roberts, Village Point, off the east coast of San
Juan Island . . . Bellingham Bay." She also concluded that:
The traditional fisheries of the post-treaty Lummi
included reefnet sites in the San Juan Islands, off
Point Roberts, Birch Point, Cherry Point, and off
Lummi Island and Fidalgo Island. Other fisheries in
the Straits and bays from the Fraser River south to
the present environs of Seattle were utilized. Fresh-
water fisheries included the river drainage systems
emptying into the bays from Boundary Bay south to
Fidalgo Bay.
As noted above, it is the specific, rather than the general,
evidence presented by Dr. Lane that Judge Boldt cited as sup-
port for his findings of fact regarding the Lummi's usual and
accustomed grounds and stations. See Decision I , 384 F.
Supp. at 360-61. None of Dr. Lane's testimony identified spe-
cific areas as far west and south as the Lummi now claim.
15938
Although Judge Boldt heard testimony from Lummi elders
who stated that they had fished as far west as the Strait of
Juan de Fuca, it is clear that he did not rely on this testimony
in determining the location of the Lummi's usual and accus-
tomed grounds and stations. It is entirely reasonable to con-
clude that Judge Boldt found this testimony to be self-serving,
see United States v. Lummi Indian Tribe, 841 F.2d 317, 319
(9th Cir. 1988) (noting that "elder testimony is not the most
accurate, documentary evidence"), choosing instead to rely on
Dr. Lane, whose testimony he found to be "authoritative" and
"reliable." Decision I, 384 F. Supp. at 350.
[10] The Lummi argue strenuously that the term "Puget
Sound" encompasses "the Strait of Juan de Fuca." Evidence
in the record, however, demonstrates that Judge Boldt did not
intend the term "Puget Sound" to be so inclusive. When com-
paring those Indian tribes that were active in marine fisheries,
Judge Boldt found that "[t]he Makahs and Quileute have troll
fisheries off the coast. The Makahs also pursue both troll and
gill net fishing in the Strait of Juan de Fuca. The Lummi Indi-
ans use gill nets in Puget Sound." Decision I , 384 F. Supp. at
385. Other examples from Decision I include:
. . . There are presently eight [Makah] boats of com-
mercial size fishing on the high seas. Three of these
boats are gill netting in the Strait of Juan de Fuca,
four are trolling, and one is tuna fishing. . . . These
commercial boats go as far as fifty miles out to sea,
east to Puget Sound and south to Westport and the
Columbia River.
Id. at 364-65 (emphasis added).
The Department of Fisheries has authority to impose
limitations on the time, place and manner of sport
and commercial fishing for salmon in the off-shore
areas within the three-mile limit, in the Strait of Juan
de Fuca and Puget Sound . . . .
15939
Id. at 390 (emphasis added). It is clear that Judge Boldt
viewed Puget Sound and the Strait of Juan de Fuca as two dis-
tinct regions, with the Strait lying to the west of the Sound.
Had he intended to include the Strait of Juan de Fuca in the
Lummi's usual and accustomed grounds and stations, he
would have used that specific term, as he did elsewhere in
Decision I.
[11] Similarly, if Judge Boldt had intended to include the
mouth of the Hood Canal, which lies south of Whidbey
Island, in the Lummi's usual and accustomed grounds and sta-
tions, he would not have limited the Lummi's usual and
accustomed grounds and stations to "Northern Puget Sound."
See Decision I, 384 F. Supp. at 360 (emphasis added). That
Judge Boldt viewed "Northern Puget Sound" as a different
area than "Hood Canal" is also evident from the following
language in Decision I:
Although not all tribes fished to a considerable
extent in marine areas, the Lummi reef net sites in
Northern Puget Sound, the Makah halibut banks,
Hood Canal and Commencement Bay and other
bays and estuaries are examples of some Indian
usual and accustomed fishing grounds and stations in
marine waters.
Id. at 353 (emphasis added).
[12] Determining Judge Boldt's intent with respect to "Ad-
miralty Inlet" is more difficult. Decision I is devoid of refer-
ences to "Admiralty Inlet." Thus, there are no linguistic clues
to compare, as there were for both of the other disputed areas.
Nevertheless, the Four Tribes argue that because this area was
not specifically named as part of the Lummi's usual and
accustomed grounds and stations, it was not intended to be
included. This argument fails because there is no indication
that Judge Boldt recognized Admiralty Inlet as a region sepa-
15940
rate from "Northern Puget Sound"; it is just as likely that this
area was intended to be included as that it was not.
[13] Geographically, however, Admiralty Inlet was
intended to be included within the "marine areas of Northern
Puget Sound from the Fraser River south to the present envi-
rons of Seattle." Admiralty Inlet consists of the waters to the
west of Whidbey Island, separating that island from the
Olympic Peninsula. Admiralty Inlet would likely be a passage
through which the Lummi would have traveled from the San
Juan Islands in the north to the "present environs of Seattle."
If one starts at the mouth of the Fraser River (a Lummi usual
and accustomed fishing ground and station, see Findings of
Fact 45 & 46) and travels past Orcas and San Juan Islands
(also Lummi usual and accustomed grounds and stations, see
Finding of Fact 45), it is natural to proceed through Admiralty
Inlet to reach the "environs of Seattle." See Decision I, 384
F. Supp. at 360.
B.
The Lummi also challenge Judge Rothstein's refusal to dis-
turb Judge Coyle's decision. We conclude that Judge Roth-
stein properly applied the law of the case doctrine.
"The law of the case doctrine is a judicial invention
designed to aid in the efficient operation of court affairs."
Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703,
715 (9th Cir. 1990). Under the doctrine, a court is generally
precluded from reconsidering an issue previously decided by
the same court, or a higher court in the identical case. See id.
For the doctrine to apply, the issue in question must have been
"decided explicitly or by necessary implication in [the] previ-
ous disposition." Liberty Mutual Ins. Co. v. EEOC, 691 F.2d
438, 441 (9th Cir. 1982). Application of the doctrine is discre-
tionary. See United States v. Mills, 810 F.2d 907, 909 (9th
Cir. 1987). A trial judge's decision to apply the doctrine is
15941
thus reviewed for an abuse of discretion. See Milgard Tem-
pering, 902 F.2d at 715.
[14] In this case, the issue in question -- whether Judge
Boldt intended for the three disputed areas to be included in
the Lummi's usual and accustomed grounds and stations --
was explicitly decided by Judge Coyle. Therefore, Judge
Rothstein abused her discretion in applying the law of the
case doctrine only if: (1) the first decision was clearly errone-
ous; (2) an intervening change in the law occurred; (3) the
evidence on remand was substantially different; (4) other
changed circumstances exist; or (5) a manifest injustice would
otherwise result. See United States v. Cuddy, 147 F.3d 1111,
1114 (9th Cir. 1998). The Lummi contest only the second fac-
tor, arguing that Muckleshoot constituted an intervening
change in the law.
[15] As discussed in Section III-A, Judge Coyle's summary
judgment order did not violate Muckleshoot; Judge Coyle
looked to the record before Judge Boldt. Thus, Judge Roth-
stein did not abuse her discretion in applying the law of the
case.
IV
We are persuaded that Judge Boldt did not intend for either
the Strait of Juan de Fuca or the mouth of the Hood Canal to
be included within the Lummi's usual and accustomed
grounds and stations. Based on the geography of the area,
however, we conclude that Judge Boldt did intend to include
Admiralty Inlet. We affirm Judge Rothstein's order of dis-
missal in part, and reverse it in part.
AFFIRMED IN PART AND REVERSED IN PART.
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