United States v. State of Washington

W.D. Washington

United States v. State of Washington

DecidedJanuary 26, 2021

Docket2:70-cv-09213

StatusUnknown

This text of United States v. State of Washington (United States v. State of Washington) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. State of Washington, (W.D. Wash. 2021).

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Opinion

1 THE HONORABLE RICARDO S. MARTINEZ

7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 UNITED STATES OF AMERICA, et al., NO. 2:70-cv-09213-RSM ` 10 Plaintiffs, Subproceeding No. 89-3

11 v. JOINT MOTION FOR APPROVAL OF STIPULATION 12 STATE OF WASHINGTON, et al., AND AGREEMENT, AND ORDER 13 Defendants. NOTE ON MOTION CALENDAR 14 PURSUANT TO LCR 7(d)(1):

15 January 21, 2021

16 STIPULATION AND AGREEMENT 17 The parties to this Stipulation and Agreement (Agreement) are the Suquamish Tribe, 18 the Swinomish Tribe, the Tulalip Tribes, and the Upper Skagit Indian Tribe (collectively, the 19 Tribes), and the Washington State Department of Fish and Wildlife (State). 20 These parties co-manage Dungeness crab fisheries within management Region 2 East. 21 Accurate accounting for harvest is an important component of fishery management. 22 Individual harvesters sometimes do not fully comply with catch reporting requirements. Thus, 23 fishery managers may employ an estimate of unreported catch (EUC). 24 This Agreement relates to the identification of EUC for State recreational harvest of 25 Puget Sound Dungeness crab harvested from within area 2-East. 26 1 The Parties have previously met to exchange technical information relating to 2 computation of EUC for Region 2 East, and have met at a policy level to review that 3 information, but have been unable to agree upon a mutually satisfactory EUC metric to employ 4 each year when accounting for State recreational harvest. In order to arrive at a mutually 5 agreeable EUC metric that will be employed each year, the Parties have agreed to dispute 6 resolution as contemplated in the Shellfish Implementation Plan, but rather than employ the 7 specific dispute resolution provisions of Section 9 of the Shellfish Implementation Plan, they 8 have developed and agreed on an alternative process for resolving the issue of an EUC metric 9 for State recreational harvest of Dungeness crab from within Region 2 East. 10 Accordingly, the Parties agree as follows: 11 1. An agreed panel of three non-party scientific/technical experts will be hired and 12 convened to establish an EUC metric for State recreational harvest of Dungeness 13 Crab from within Region 2 East. The panel, and its deliberations, will proceed 14 based upon the Services Contract (including the Performance Work Statement and 15 Meeting Protocol incorporated therein) executed with each of the three science 16 panelists, an exemplar of which is attached as an Exhibit to this Joint Motion for 17 Approval of Stipulation and Agreement and [Proposed] Order. 18 2. The cost of the expert panel deliberations will be shared as follows: Half paid by 19 the State and the other half paid by the Tribes who will apportion that shared cost 20 as they may separately agree upon. 21 3. The EUC metric determined by the expert panel shall be utilized to arrive at the 22 annual estimate of unreported catch that may be associated with State recreational 23 harvest of Dungeness crab from within Region 2 East until one of the following 24 events occurs: 25 a. The Parties agree in writing to modify the EUC metric; or 26 1 b. One or more parties provides a written demand for modification of the EUC 2 metric and an alternative EUC metric is established in the Shellfish 3 Implementation Plan Section 9 dispute resolution process or an alternative 4 dispute resolution process agreed upon by the parties. A written demand 5 for modification shall include a statement identifying what specific 6 changed facts or circumstances render the expert panel report and the EUC 7 metric presented therein no longer valid or should no longer be applied 8 because: 9 i. the facts or the assumptions supporting the panel’s analysis have 10 changed or been superseded; or 11 ii. Material changes in fishing practices or compliance with reporting 12 catch have occurred; or 13 iii. Methods of estimating unreported catch have been devised that will 14 improve estimates and can be implemented with reasonable cost 15 and effort; or 16 iv. Any other changed fact or circumstance which casts doubt upon the 17 validity of the panel decision. 18 4. The EUC metric determined by the expert panel is the product of this stipulation, 19 and the Parties agree to be bound by the terms of this agreement in that regard. 20 Accordingly, the EUC determined by the expert panel shall bind the Parties, 21 without appeal or other recourse under Section 9 of the SIP, as they carry out 22 co-management of Puget Sound Dungeness crab harvest pursuant to the SIP 23 (subject to paragraph 3 above). 24 5. This Stipulation and Agreement shall be entered as a consent decree and order in 25 subproceeding 89-3 of the above captioned case. 26 1 6. As a consent decree, the terms of this Agreement may be enforced by application 2 to the Court for enforcement of its orders. The normal paragraph 25 pre-filing 3 conditions shall apply prior to seeking such court enforcement. 4 Based upon execution of this Stipulation and Agreement of the Parties through the 5 signature of their counsel of record below, the Parties hereby jointly move the Court for 6 approval of the Agreement, and entry of its terms as an Order of the Court. 7 DATED this 19th day of January, 2021. 8 ROBERT W. FERGUSON 9 Attorney General

10 s/ Michael S. Grossmann MICHAEL S. GROSSMANN, WSBA #15293 11 Senior Counsel Attorneys for State of Washington 12

13 MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE 14 s/ Mason D. Morisset 15 Mason D. Morisset, WSBA No. #273 Attorney for The Tulalip Tribes 16

17 UPPER SKAGIT INDIAN TRIBE 18 s/ David S. Hawkins 19 David S. Hawkins, WSBA # 35370 General Counsel 20 Attorney for the Upper Skagit Indian Tribe

21 SWINOMISH INDIAN TRIBAL COMMUNITY 22 /s James M. Janetta 23 James M. Jannetta, WSBA No. #36525 24 Emily Haley, WSBA # 38284 Office of the Tribal Attorney 25 Attorney for Swinomish Indian Tribal Community 26 1 OFFICE OF SUQUAMISH TRIBAL ATTORNEY 2

/s James Ritenhouse Bellis 3 James Rittenhouse Bellis, WSBA# 29226 4 Attorneys for Suquamish Indian Tribe

5 LAW OFFICE OF JOHN W. OGAN

6 /s John W. Ogan 7 John W. Ogan, WSBA #24288 Attorneys for Suquamish Indian Tribe 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 ORDER 2 The Court has examined the Stipulation and Agreement of the Parties. The Court 3 concludes that the Stipulation and Agreement is fundamentally fair, adequate, and reasonable, 4 both procedurally and substantively, in the public interest, and consistent with applicable law, 5 and that it is has been negotiated by the parties in good faith. See Firefighters v. Cleveland, 6 478 U.S.501 (1986); United States v. Oregon, 913 F.2d 576, 580-81 (9th Cir. 1990). 7 The Parties’ joint motion to approve the Stipulation and Order is GRANTED. The 8 Stipulation and Agreement of the Parties set forth above is hereby approved and adopted as an 9 Order of the Court. 10 This Court retains jurisdiction to resolve disputes concerning the Stipulation and 11 Agreement as described therein.

12 DONE IN OPEN COURT this 26th day of January, 2021.

14 A 15 16 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 17

19 Presented by:

20 ROBERT W. FERGUSON Attorney General 21 s/ Michael S. Grossmann MICHAEL S. GROSSMANN, WSBA #15293 22 Senior Counsel Attorneys for State of Washington 23 MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE 24 s/ Mason D. Morisset Mason D. Morisset, WSBA No. #273 25 Attorney for The Tulalip Tribes

26 UPPER SKAGIT INDIAN TRIBE 1 s/ David S. Hawkins David S. Hawkins, WSBA # 35370 2 General Counsel Attorney for the Upper Skagit Indian Tribe 3 SWINOMISH INDIAN TRIBAL COMMUNITY 4 s/ James M. Janetta 5 James M. Jannetta, WSBA No.

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1 THE HONORABLE RICARDO S. MARTINEZ

7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 UNITED STATES OF AMERICA, et al., NO. 2:70-cv-09213-RSM ` 10 Plaintiffs, Subproceeding No. 89-3

11 v. JOINT MOTION FOR APPROVAL OF STIPULATION 12 STATE OF WASHINGTON, et al., AND AGREEMENT, AND ORDER 13 Defendants. NOTE ON MOTION CALENDAR 14 PURSUANT TO LCR 7(d)(1):

15 January 21, 2021

16 STIPULATION AND AGREEMENT 17 The parties to this Stipulation and Agreement (Agreement) are the Suquamish Tribe, 18 the Swinomish Tribe, the Tulalip Tribes, and the Upper Skagit Indian Tribe (collectively, the 19 Tribes), and the Washington State Department of Fish and Wildlife (State). 20 These parties co-manage Dungeness crab fisheries within management Region 2 East. 21 Accurate accounting for harvest is an important component of fishery management. 22 Individual harvesters sometimes do not fully comply with catch reporting requirements. Thus, 23 fishery managers may employ an estimate of unreported catch (EUC). 24 This Agreement relates to the identification of EUC for State recreational harvest of 25 Puget Sound Dungeness crab harvested from within area 2-East. 26 1 The Parties have previously met to exchange technical information relating to 2 computation of EUC for Region 2 East, and have met at a policy level to review that 3 information, but have been unable to agree upon a mutually satisfactory EUC metric to employ 4 each year when accounting for State recreational harvest. In order to arrive at a mutually 5 agreeable EUC metric that will be employed each year, the Parties have agreed to dispute 6 resolution as contemplated in the Shellfish Implementation Plan, but rather than employ the 7 specific dispute resolution provisions of Section 9 of the Shellfish Implementation Plan, they 8 have developed and agreed on an alternative process for resolving the issue of an EUC metric 9 for State recreational harvest of Dungeness crab from within Region 2 East. 10 Accordingly, the Parties agree as follows: 11 1. An agreed panel of three non-party scientific/technical experts will be hired and 12 convened to establish an EUC metric for State recreational harvest of Dungeness 13 Crab from within Region 2 East. The panel, and its deliberations, will proceed 14 based upon the Services Contract (including the Performance Work Statement and 15 Meeting Protocol incorporated therein) executed with each of the three science 16 panelists, an exemplar of which is attached as an Exhibit to this Joint Motion for 17 Approval of Stipulation and Agreement and [Proposed] Order. 18 2. The cost of the expert panel deliberations will be shared as follows: Half paid by 19 the State and the other half paid by the Tribes who will apportion that shared cost 20 as they may separately agree upon. 21 3. The EUC metric determined by the expert panel shall be utilized to arrive at the 22 annual estimate of unreported catch that may be associated with State recreational 23 harvest of Dungeness crab from within Region 2 East until one of the following 24 events occurs: 25 a. The Parties agree in writing to modify the EUC metric; or 26 1 b. One or more parties provides a written demand for modification of the EUC 2 metric and an alternative EUC metric is established in the Shellfish 3 Implementation Plan Section 9 dispute resolution process or an alternative 4 dispute resolution process agreed upon by the parties. A written demand 5 for modification shall include a statement identifying what specific 6 changed facts or circumstances render the expert panel report and the EUC 7 metric presented therein no longer valid or should no longer be applied 8 because: 9 i. the facts or the assumptions supporting the panel’s analysis have 10 changed or been superseded; or 11 ii. Material changes in fishing practices or compliance with reporting 12 catch have occurred; or 13 iii. Methods of estimating unreported catch have been devised that will 14 improve estimates and can be implemented with reasonable cost 15 and effort; or 16 iv. Any other changed fact or circumstance which casts doubt upon the 17 validity of the panel decision. 18 4. The EUC metric determined by the expert panel is the product of this stipulation, 19 and the Parties agree to be bound by the terms of this agreement in that regard. 20 Accordingly, the EUC determined by the expert panel shall bind the Parties, 21 without appeal or other recourse under Section 9 of the SIP, as they carry out 22 co-management of Puget Sound Dungeness crab harvest pursuant to the SIP 23 (subject to paragraph 3 above). 24 5. This Stipulation and Agreement shall be entered as a consent decree and order in 25 subproceeding 89-3 of the above captioned case. 26 1 6. As a consent decree, the terms of this Agreement may be enforced by application 2 to the Court for enforcement of its orders. The normal paragraph 25 pre-filing 3 conditions shall apply prior to seeking such court enforcement. 4 Based upon execution of this Stipulation and Agreement of the Parties through the 5 signature of their counsel of record below, the Parties hereby jointly move the Court for 6 approval of the Agreement, and entry of its terms as an Order of the Court. 7 DATED this 19th day of January, 2021. 8 ROBERT W. FERGUSON 9 Attorney General

10 s/ Michael S. Grossmann MICHAEL S. GROSSMANN, WSBA #15293 11 Senior Counsel Attorneys for State of Washington 12

13 MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE 14 s/ Mason D. Morisset 15 Mason D. Morisset, WSBA No. #273 Attorney for The Tulalip Tribes 16

17 UPPER SKAGIT INDIAN TRIBE 18 s/ David S. Hawkins 19 David S. Hawkins, WSBA # 35370 General Counsel 20 Attorney for the Upper Skagit Indian Tribe

21 SWINOMISH INDIAN TRIBAL COMMUNITY 22 /s James M. Janetta 23 James M. Jannetta, WSBA No. #36525 24 Emily Haley, WSBA # 38284 Office of the Tribal Attorney 25 Attorney for Swinomish Indian Tribal Community 26 1 OFFICE OF SUQUAMISH TRIBAL ATTORNEY 2

/s James Ritenhouse Bellis 3 James Rittenhouse Bellis, WSBA# 29226 4 Attorneys for Suquamish Indian Tribe

5 LAW OFFICE OF JOHN W. OGAN

6 /s John W. Ogan 7 John W. Ogan, WSBA #24288 Attorneys for Suquamish Indian Tribe 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 ORDER 2 The Court has examined the Stipulation and Agreement of the Parties. The Court 3 concludes that the Stipulation and Agreement is fundamentally fair, adequate, and reasonable, 4 both procedurally and substantively, in the public interest, and consistent with applicable law, 5 and that it is has been negotiated by the parties in good faith. See Firefighters v. Cleveland, 6 478 U.S.501 (1986); United States v. Oregon, 913 F.2d 576, 580-81 (9th Cir. 1990). 7 The Parties’ joint motion to approve the Stipulation and Order is GRANTED. The 8 Stipulation and Agreement of the Parties set forth above is hereby approved and adopted as an 9 Order of the Court. 10 This Court retains jurisdiction to resolve disputes concerning the Stipulation and 11 Agreement as described therein.

12 DONE IN OPEN COURT this 26th day of January, 2021.

14 A 15 16 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 17

19 Presented by:

20 ROBERT W. FERGUSON Attorney General 21 s/ Michael S. Grossmann MICHAEL S. GROSSMANN, WSBA #15293 22 Senior Counsel Attorneys for State of Washington 23 MORISSET, SCHLOSSER, JOZWIAK & SOMERVILLE 24 s/ Mason D. Morisset Mason D. Morisset, WSBA No. #273 25 Attorney for The Tulalip Tribes

26 UPPER SKAGIT INDIAN TRIBE 1 s/ David S. Hawkins David S. Hawkins, WSBA # 35370 2 General Counsel Attorney for the Upper Skagit Indian Tribe 3 SWINOMISH INDIAN TRIBAL COMMUNITY 4 s/ James M. Janetta 5 James M. Jannetta, WSBA No. #36525 Emily Haley, WSBA # 38284 6 Office of the Tribal Attorney Attorney for Swinomish Indian Tribal Community 7 OFFICE OF SUQUAMISH TRIBAL ATTORNEY 8 s/ James Rittenhouse Bellis James Rittenhouse Bellis, WSBA# 29226 9

10 LAW OFFICE OF JOHN W. OGAN s John W. Ogan 11 John W. Ogan, WSBA #24288 Attorneys for Suquamish Indian Tribe 12

13 14 15 16 17 18 19 20 21 22 23 24 25 26

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