United States v. State of Washington

Opinion

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE

8 UNITED STATES OF AMERICA, et al., CASE NO. C70-9213 RSM

9 Plaintiffs, SUBPROCEEDING NO. 20-01 RSM

10 v. ORDER DENYING MOTION BY INTERESTED PARTIES FOR 11 STATE OF WASHINGTON, et al., RECONSIDERATION OF ORDER DENYING TRO JOINED BY UPPER 12 Defendants. SKAGIT

13 This matter is before the Court on a motion, filed by several tribes, seeking 14 reconsideration of the Court’s Order Denying Motion for Temporary Restraining Order.1 Dkt. 15 #22.2 The motion is made collectively by the Tulalip Tribes, Puyallup Indian Tribe, Makah 16 Indian Tribe, Port Gamble S’Klallam Tribe, and Jamestown S’Klallam Tribe, all of whom are 17 joined by Upper Skagit Indian Tribe (“Upper Skagit”) (collectively, the “Moving Tribes”). The 18 Moving Tribes assert that the Court’s decision to not issue a temporary restraining order was 19 “manifestly erroneous.” Id. at 2. Specifically, the Moving Tribes disagree with the Court’s 20

21 1 The Court will address Upper Skagit Indian Tribe’s Motion for Summary Judgment (Dkt. #24; Dkt. #22,297 in Case No. C70-9213RSM) and Sauk-Suiattle Indian Tribe’s Motion to Dismiss 22 for Lack of Jurisdiction (Dkt. #27; Dkt. #22,301 in Case No. C70-9213RSM) by separate order.

23 2 Dkt. #22,295 in Case No. C70-9213RSM. Throughout, the Court provides citations to the docket of the underlying case the first time a filing is cited. Thereafter, citations are only to the 24 docket of subproceeding 20-01RSM. 1 conclusion that “Upper Skagit’s claim of irreparable harm was ‘too general and unsubstantiated 2 to find that irreparable harm is imminent in this case.’” Id. The Moving Tribes argue that they, 3 and more specifically Upper Skagit, are currently “suffering from the facially illegal Sauk- 4 Suiattle fishery [because the Court required] more than ‘irreparable harm’” to justify a temporary 5 restraining order. Id. They argue that the Court required Upper Skagit quantify its irreparable

6 harm and that this was error because any fishing out of compliance with Judge Boldt’s decision 7 irreparably harms every tribes’ treaty fishing rights. Id. at 2–3. 8 “Motions for reconsideration are disfavored.” W.D. Wash. Local Rules LCR 7(h)(1). 9 Consequently, the Court will “ordinarily deny such motions in the absence of a showing of 10 manifest error in the prior ruling or a showing of new facts or legal authority which could not 11 have been brought to [the Court’s] attention earlier with reasonable diligence.” Id. “This 12 standard is a ‘high hurdle.’ Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001). Neither the 13 Local Civil Rules nor the Federal Rules of Civil Procedure, which allow for a motion for 14 reconsideration, is intended to provide litigants with a second bite at the apple.” Aronson v. Dog

15 Eat Dog Films, Inc., 738 F. Supp. 2d 1104, 1118 (W.D. Wash. 2010). 16 Here, the Court finds the Moving Tribes’ motion unpersuasive. The motion does not 17 establish manifest error and instead demonstrates the Moving Tribes’ continued disagreement 18 with the Court’s decision. Their argument is based on their belief that the Court “implicitly 19 acknowledged harm” by indicating, in a footnote, that the “Court does not find an absence of 20 harm, rather the Court finds that the record does not demonstrate that irreparable harm is 21 imminent in the absence of injunctive relief.” Dkt. #22 at 2 (quoting Dkt. #203 at 7 n.9) (quotation 22 marks omitted). Of course, not finding an absence of harm is not the same as finding harm. But 23

24 3 Dkt. #22,284 in Case No. C70-9213RSM. 1 the Moving Tribes charge ahead, arguing that the presumed harm must relate to their treaty 2 fishing rights and must be irreparable. But the argument itself is dubious and falls far short of 3 demonstrating manifest error.4 The Moving Tribes remaining arguments rely on new authorities 4 or are outside the scope of the original briefing with no argument for why these arguments could 5 not have been made to the Court previously. See LCR 7(h)(1). The Court disregards them.

6 Lastly, the Court notes that the Sauk-Suiattle Indian Tribe (“Sauk-Suiattle”) filed a 7 response to the Moving Tribes’ motion for reconsideration without seeking leave of the Court. 8 Dkt. #23.5 The Court does not consider the response. See LCR 7(h)(3) (“No response to a motion 9 for reconsideration shall be filed unless requested by the court.”). 10 For the reasons discussed above, the Court ORDERS that the Motion by Interested Parties 11 for Reconsideration of Order Denying TRO Joined by Upper Skagit (Dkt. #22) is DENIED. 12 Dated this 10th day of November, 2020. 13 A 14 RICARDO S. MARTINEZ 15 CHIEF UNITED STATES DISTRICT JUDGE 16

4 For instance, the Moving Tribes cite to several prior instances where this Court has found 17 irreparable harm to a tribe’s treaty fishing right warranting injunctive relief. Most of these instances were not cited by Upper Skagit in its motion for a temporary restraining order and the 18 Moving Tribes offer no reason the authorities could not have been brought before the Court with reasonable diligence. See LCR 7(h)(1). But regardless, the prior decisions are not in conflict 19 with the Court’s Order. Each of those prior decisions was premised upon findings of actual and irreparable harm to tribal treaty fishing rights warranting injunctive relief. For instance, the 20 Moving Tribes point to Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504 (W.D. Wash. 1988). They focus on language providing that “the harm to [treaty rights] cannot be measured solely in 21 terms of the amount of lost income the Tribes might suffer” to argue that the harm to treaty rights is irreparable. Id. at 1516. But they overlook that the Court had already determined that actual 22 harm to a treaty right would occur. See id. at 1515 (“the proposed elimination of a portion of the usual and accustomed fishing ground where the Marina is to be built will deny the Tribes access 23 to their usual and accustomed fishing ground”).

24 5 Dkt. #22,296 in Case No.C70-9213RSM.