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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA;
MUCKLESHOOT TRIBE; NOOKSACK;
UPPER SKAGIT; SQUAXIN ISLAND;
LUMMI INDIAN TRIBE; MAKAH                             No. 96-35014
TRIBE; TULALIP TRIBE; SWINOMISH
                                                     D.C. No.
INDIAN TRIBAL COMMUNITY;
                                                     CV-89-00003-ER
QUILEUTE INDIAN TRIBE; PUYALLUP
                                                     ORDER
TRIBE; HOH INDIAN TRIBE;
                                                     AMENDING
SUQUAMISH TRIBE; QUINAULT INDIAN
                                                     OPINION AND
NATION; CONFEDERATED TRIBES &
                                                     DENYING
BANDS OF THE YAKIMA INDIAN
                                                     PETITION FOR
NATION; NISQUALLY INDIAN TRIBE;
                                                     REHEARING AND
JAMESTOWN TRIBE; LOWER ELWHA
                                                     REJECTING
KLALLAM TRIBE; PORT GAMBLE

                                                     SUGGESTION
BANDS; SKOKOISH TRIBE; SAUK-
                                                     FOR REHEARING
SUIATTLE TRIBE; STILLAGUAMISH
                                                     EN BANC AND
TRIBE,
                                                     AMENDED
Plaintiffs-Appellees,
                                                     OPINION
v.


STATE OF WASHINGTON,
Defendant-Appellant.


                               11425


UNITED STATES OF AMERICA;
MUCKLESHOOT TRIBE; NOOKSACK;
UPPER SKAGIT; SQUAXIN ISLAND;
LUMMI INDIAN TRIBE; MAKAH
TRIBE; TULALIP TRIBE; SWINOMISH
INDIAN TRIBAL COMMUNITY;
PUYALLUP TRIBE; QUILEUTE INDIAN
TRIBE; SUQUAMISH TRIBE; HOH
INDIAN TRIBE; QUINAULT INDIAN
NATION; CONFEDERATED TRIBES &
BANDS OF THE YAKIMA INDIAN
NATION; NISQUALLY INDIAN TRIBE;
JAMESTOWN TRIBE; LOWER ELWHA
KLALLAM TRIBE; PORT GAMBLE
BANDS; SKOKOISH TRIBE; SAUK-
                                                     No. 96-35082
SUIATTLE TRIBE; STILLAGUAMISH
                                                     D.C. No.
TRIBE,
                                                     CV-89-00003-ER
Plaintiffs-Appellees,


v.

STATE OF WASHINGTON, et al.,
Defendants,


and

26 UPLAND AND TIDELAND PRIVATE
PROPERTY OWNERS, (Dan Buehler,
Robert L. Davis, Bruce I. Fielding,
Arthur J. Gerdes, Joe Hoots,
Keith C. Huetson, Commander
J. C. James, Richard Sayre Koch,
Elaine C. Lefler, Joan Lemonds-
Roush, John S. Lewis, Steven L.


                               11426


Luke, Edward R. McMillan,
Robert F. Newman, Mark A.
Nysether, Arthur I. Price, Ray D.
Randall, Cynthia Ramussen,
Robert G. Shanks, Axel
Strakeljahn, Leana Tracy, Stuart
W. Turner, George B. Usnick,
Lee S. Vincent, Joan Walker and
William E. Whitney, Jr.),
Defendants-intervenors-
Appellants.


UNITED STATES OF AMERICA, et al.,;
MUCKLESHOOT TRIBE; NOOKSACK;
UPPER SKAGIT; SQUAXIN ISLAND;
LUMMI INDIAN TRIBE; MAKAH
TRIBE; TULALIP TRIBE; SWINOMISH
INDIAN TRIBAL COMMUNITY;
PUYALLUP TRIBE; QUILEUTE INDIAN
TRIBE; SUQUAMISH TRIBE; HOH
INDIAN TRIBE; QUINAULT INDIAN                         No. 96-35142
NATION; CONFEDERATED TRIBES &
                                                     D.C. No.
BANDS OF THE YAKIMA INDIAN
                                                     CV-89-00003-ER
NATION; NISQUALLY INDIAN TRIBE;
JAMESTOWN TRIBE; LOWER ELWHA
KLALLAMTRIBE; PORT GAMBLE
BANDS; SKOKOISH TRIBE; SAUK-
SUIATTLETRIBE; STILLAGUAMISH
TRIBE,
Plaintiffs-Appellees,


v.

                               11427


STATE OF WASHINGTON, et al.,
Defendants,


and

JAMES HADLEY; JAMES CARTER;
ANN CARTER; CHARMOND ADKINS;
LARRY ALEXANDER; SHIRLEE
ALEXANDER; GRACE BOYD; PIERCE
DAVIS; ROSEMARY DUNCAN; MAY
DAVIS; JAMES C. JOHNSTON; SARAH
JOHNSTON; W. K. KIRCH; JO ANN
KIRCH; DAVID MITCHELL; LOUIS
NAWROT, JR.; BOON HO WOO;
HAROLD BAUER; BILLIE BAUER;
WILLIAM CHASE; FRANCES FELLOWS;
GEORGE GRADER; EARL
HUNSPERGER; MILLICENT
HUNSPERGER; EDWARD KRENZ;
ELEANOR KRENZ; H. J. MERRICK;
MOSS GORDON; MARGARET MOSS;
SEWALL REYNOLDS; EMMA
REYNOLDS; JOHN RIACH; ALVA
HAZEL ROBB; IRENE SMITH;
PROVIDENCE WORLEY,
Defendants-Intervenors-
Appellants.


                               11428


UNITED STATES OF AMERICA, et al.,
Plaintiff,


and

LUMMI TRIBE; MUCKLESHOOT TRIBE;
NOOKSACK; UPPER SKAGIT; SQUAXIN
ISLAND; MAKAH TRIBE; SWINOMISH
INDIAN TRIBAL COMMUNITY; TULALIP
TRIBE; PUYALLUP TRIBE; QUILEUTE
INDIAN TRIBE; HOH INDIAN TRIBE;
SUQUAMISH TRIBE; NISQUALLY
INDIAN TRIBE; JAMESTOWN TRIBE;
LOWER ELWHA KLALLAM TRIBE;
                                                     No. 96-35196
PORT GAMBLE BANDS; SKOKOISH
                                                     D.C. No.
TRIBE; SAUK-SUIATTLE TRIBE;
                                                     CV-89-00003-ER
STILLAGUAMISH TRIBE,
Plaintiffs-Intervenors-
Appellants,


and

QUINAULT INDIAN NATION;
CONFEDERATED TRIBES & BANDS OF
THE YAKIMA INDIAN NATION,
Plaintiffs-Intervenors,


v.

STATE OF WASHINGTON, et al.,
Defendants-Appellees.


                               11429


UNITED STATES OF AMERICA, et al.,
Plaintiff-Appellant,


and

MUCKLESHOOT TRIBE; NOOKSACK;
UPPER SKAGIT; SQUAXIN ISLAND;
LUMMI INDIAN TRIBE; MAKAH
TRIBE; TULALIP TRIBE; SWINOMISH
INDIAN TRIBAL COMMUNITY;
PUYALLUP TRIBE; QUILEUTE INDIAN
TRIBE; HOH INDIAN TRIBE;
                                                     No. 96-35200
SUQUAMISH TRIBE; QUINAULT INDIAN
NATION; CONFEDERATED TRIBES &
                                                     D.C. No.
BANDS OF THE YAKIMA INDIAN
                                                     CV-89-00003-ER
NATION; NISQUALLY INDIAN TRIBE;
JAMESTOWN TRIBE; LOWER ELWHA
KLALLAM TRIBE; PORT GAMBLE
BANDS; SKOKOISH TRIBE; SAUK-
SUIATTLE TRIBE; STILLAGUAMISH
TRIBE,
Plaintiffs-Intervenors,


v.

STATE OF WASHINGTON, et al.,
Defendant-Appellee.


                               11430


UNITED STATES OF AMERICA,
Plaintiffs-Appellees,


and

LUMMI INDIAN TRIBE; MUCKLESHOOT
TRIBE; NOOKSACK; UPPER SKAGIT;
SQUAXIN ISLAND; MAKAH TRIBE;
SWINOMISH INDIAN TRIBAL
COMMUNITY; TULALIP TRIBE;
PUYALLUP TRIBE; QUILEUTE INDIAN
TRIBE; HOH INDIAN TRIBE;
SUQUAMISH TRIBE; QUINAULT INDIAN
NATION; CONFEDERATED TRIBES &
BANDS OF THE YAKIMA INDIAN
                                                     No. 96-35223
NATION; NISQUALLY INDIAN TRIBE;
JAMESTOWN TRIBE; LOWER ELWHA
                                                     D.C. No.
KLALLAM TRIBE; PORT GAMBLE
                                                     CV-89-00003-ER
BANDS; SKOKOISH TRIBE; SAUK-
SUIATTLE TRIBE; STILLAGUAMISH
TRIBE,
Plaintiffs-Intervenors-
Appellees,


v.

STATE OF WASHINGTON, et al.,
Defendant,


and

PUGET SOUND SHELLFISH GROWERS,
Defendants-Intervenors-
Appellants.


Appeals from the United States District Court
for the Western District of Washington
Edward Rafeedie, District Judge, Presiding


                               11431


Argued and Submitted
May 5, 1997--Seattle, Washington


Filed January 28, 1998
Amended September 25, 1998


Before: Donald P. Lay,* Robert R. Beezer and
Stephen S. Trott, Circuit Judges.


Opinion by Judge Trott; Concurrence by Judge Beezer

_________________________________________________________________

SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1998 by West Group.
_________________________________________________________________


Natural Resources and Energy/Native Americans

The court of appeals affirmed a judgment of the district
court in part and reversed in part. The court held that under
the Stevens Treaties, signatory Indian tribes have the right to
take all species of shellfish in their traditional fishing areas,
except in privately owned artificial beds.


In 1855, appellee United States negotiated the "Stevens
Treaties" with appellee Muckleshoot Tribe and other Native
American tribes in the Western Washington Territory. In
exchange for the cession of their aboriginal lands, the tribes
gained exclusive title to certain lands and various other bene-
fits. The Treaties reserved to the tribes the right to take fish
at their "usual and accustomed grounds" in common with "all
citizens of the Territory." The tribes' rights were limited by
a "Shellfish Proviso," which forbid them from taking shellfish
from beds "staked or cultivated by citizens."


The territorial legislature passed a law in 1879 that gave
_________________________________________________________________
*The Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Cir-
cuit Court of Appeals, sitting by designation.


                               11432


citizens the exclusive right to use and harvest natural oyster
beds. After Washington became a state in 1895, it passed a
law for private acquisition of tidelands, including those that
contained natural shellfish beds. The State sold most of its
tidelands to private owners.


In 1970, the United States and the tribes brought an action
(Washington I) to enforce their fishing rights under the Trea-
ties. The district court determined the nature and extent of the
tribes' fishing rights regarding andromous (upstream-
migrating) fish, the locations of their usual and accustomed
grounds and stations, and the size of their take from those
locations (50 percent of the harvestable fish). The court
reserved jurisdiction to rule on unresolved issues arising out
of the Treaties.


Under the district court's reservation of jurisdiction, the
tribes brought another action (Shellfish I) to determine their
shellfishing rights. The court concluded that the Treaties enti-
tled the tribes to 50 percent of the shellfish harvest in Wash-
ington waters. Rejecting the contentions of non-tribal growers
and private property owners, the court concluded that the
Treaties did not permit any restriction on the tribes' harvest-
ing rights based on shellfish species or the technology used to
cultivate or take them.


In a subsequent trial (Shellfish II) to implement its decision
in Shellfish I, the district court concluded that application of
equitable principles was required to protect the rights of the
tribes, the growers, and the private owners. Accordingly, the
court ruled that when the State of Washington develops artifi-
cial shellfish beds on state-owned tidelands, it acts as a
"citizen" within the meaning of the Shellfish Proviso. The
effect of this ruling was to exclude the tribes from shellfishing
in state-created artificial beds.


The district court also concluded that a "natural shellfish
bed" that could not be staked or cultivated by the growers was


                               11433


one that is capable of sustaining a yield sufficient to support
a commercial livelihood, i.e., 0.5 pounds of manila clams per
square foot. The court modified the definition of "cultivated"
to cover the range of techniques the growers used to enhance
production on their property, dubbing such beds "de facto
artificial beds." Additionally, the court imposed "time, place
and manner" restrictions on the tribes' right to shellfish on
private property, including a blanket ban on upland access to
private property without the owner's consent.


To settle disputes, the district court established a procedure
calling for a panel of four special masters: one selected by the
tribes, one by the growers, one by the private owners, and one
by the State. A single master drawn from the four would
determine each dispute, and had authority to award damages.


In Shellfish II, the district court revised its ban on upland
tribal access by allowing the tribes to cross private land after
a showing of necessity due to the absence of other means.
Disputes were to be presented to a special master, who could
award damages against individual tribal members, but not
against a tribe.


Both sides appealed.

[1] The State's contention, that the tribes had no right to
certain deepwater species of shellfish not historically har-
vested in shallower waters and tidelands, was inconsistent
with the language of the Treaties, the law of the case, and the
intent and understanding of the signatory parties.


[2] There is no language in the Treaties to support that
position: the Treaties make no mention of a species-specific
or technology-based restrictions on the tribes' rights. Had the
treaty parties intended to limit the harvestable species, they
would not have chosen the word "fish," which has the widest
sweep of any word the drafters could have chosen. [3] At
Treaty time, the tribes had the absolute right to harvest any


                               11434


species. That some species were not taken before treaty time
did not mean that the Indians' right to take such fish was lim-
ited. A more restrictive reading of the Treaties would have
been contrary to the Supreme Court's conclusion that the
Treaties are a grant of rights from the tribes.


[4] Since Washington I, courts considering fishing disputes
under the Treaties have never required species-specific find-
ings of usual and accustomed fishing grounds. [5] Moreover,
it would be extremely burdensome and perhaps impossible for
the tribes to prove their usual and accustomed grounds on a
species-specific basis. [6] The district court was correct in
concluding that the tribes' usual and accustomed grounds for
shellfish are coextensive with their usual and accustomed
fishing grounds, which have been previously defined by the
courts.


[7] Under the Equal Footing Doctrine, every new state is
entitled to entrance into the Union free of any encumbrance
on its land, so that it stands on an "equal footing" with the
other states. The "Shively presumption " is an outgrowth of
this doctrine, and holds that any pre-statehood grant of prop-
erty does not include tidelands unless the grant clearly indi-
cated that tidelands were included. [8]  The Supreme Court has
applied the Equal Footing Doctrine only when evaluating a
claim of right to lands beneath navigable waters based on an
alleged conveyance or retention of fee simple ownership by
the United States prior to statehood. This case did not involve
ownership of tidelands. The tribes did not claim ownership;
they merely asserted their right to harvest shellfish within the
tidelands, regardless of ownership. [9]  Moreover, application
of the Equal Footing Doctrine has been rejected in the context
of the Stevens Treaties fishing rights.


[10] The Supreme Court has consistently rejected argu-
ments to the effect that Indian treaties reserve to the Indians
no more fishing rights than those enjoyed by non- Indian citi-
zens. [11] The Court has made clear that the tribes' fishing


                               11435


rights in their usual and accustomed places are not diminished
by private ownership of those lands. In fact, the Treaties
imposed a servitude on every piece of land they described.
[12] Moreover, the Treaties provide Indians with certain
rights that non-Indians do not have. [13]  Regardless of
whether shellfish were a private or public resource at treaty
time or today, the Treaties secured the tribes' right to fish at
their usual and accustomed grounds and stations. The tribes
therefore acquired the right to take shellfish from tidelands
without regard to the public or private nature of their owner-
ship. [14] The district court correctly determined that the
tribes have a right to harvest shellfish on private tidelands.


[15] The district court found that the tribes presented com-
pelling evidence that only artificial beds were "staked" or
"cultivated" at treaty time. The court's analysis of the Shell-
fish Proviso was correct.


[16] Laches or estoppel is not available to defeat Indian
treaty rights. Although the tribes waited 135 years to assert
their shellfishing rights, the law did not support the growers'
claim.


[17] The district court abused its discretion by applying
notions of equity to redefine the term "cultivate." [18] How-
ever, it did not follow that the court was without the ability
to use equity in implementing its treaty interpretation. The
court should have used its equitable powers only to limit the
take of the tribes--not the location--to avoid any unjust
enrichment. [19] The court should have used equitable princi-
ples to limit the tribes' shellfish harvest from the growers'
beds to a "fair share." [20] It would contravene such notions
of fairness if the tribes were permitted to take 50 percent of
the growers' enhanced harvest. Only those growers' beds that
exist solely by virtue of natural propagation of species were
subject to a 50 percent allocation.


[21] Where the growers or their predecessors began their
enhancement on a natural bed and demonstrate what portion


                               11436


of their harvest is due to their labor, the Tribes are entitled to
50 percent of the pre-enhanced sustainable shellfish produc-
tion from those beds. This allocation does not apply to artifi-
cial beds.


[22] The State was unable to cite a single case to support
its proposition that a state can be a "citizen. " It took an act of
Congress to enable a corporation to be considered a citizen for
purposes of diversity jurisdiction. That portion of the district
court's decision that deemed the State of Washington to be a
"citizen" for purposes of the Shellfish Proviso therefore had
to be reversed.


[23] The district court committed clear error when it found
that the minimum quantity of manila clams that will support
a commercial livelihood is 0.5 pounds of mature clams per
square foot. Manila clams were the only species for which the
court made such a finding. [24] No witness gave an opinion
as to the density of manila clams necessary for a successful
commercial harvest. No document set forth any analysis of
what density is necessary for commercial success. There was
no indication that bed samples included only mature clams in
their density calculation. [25] The court's finding had to be
reversed and the case remanded for a new hearing on the
issue.


[26] The tribes are entitled to a right of access across pri-
vate lands to invoke their treaty fishing rights. Rather than
eliminating the tribes' right to cross private land, the district
court engaged in a balancing of hardships in fashioning its
remedy. Although the district court could not use equitable
principles in interpreting the Treaties, it could in deciding
how to implement them. The court did not err by requiring the
tribes to prove the unavailability of other forms of access
before allowing them to cross private land.


[27] The district court also used equitable principles to sub-
ject the tribes' treaty shellfishing rights to time, place, and


                               11437


manner restrictions when the right is exercised on growers' or
owners' property. The restrictions were a proper use of the
court's equitable powers.


[28] Due process is violated if there is a 75 percent chance
that the appellants' master would be selected. This aspect of
the implementation plan therefore had to be vacated. [29] The
portion of the implementation order allowing special masters
to award damages against the tribes also had to be vacated.
However, the special masters can award damages against
individual members.


Judge Beezer concurred separately to discuss the interpreta-
tion of the Stevens Treaties and the appointment of special
masters.


_________________________________________________________________

COUNSEL

Phillip E. Katzen (Argued) and Allen H. Sanders, Columbia
Legal Services, Seattle, Washington, for the plaintiff-appellee
cross-appellant Jamestown, Lower Elwha and Port Gamble
Bands of S'Klallams, Nisqually, Nooksack, Sauk-Suiattle,
Skokomish, Squaxin Island, Stillaguamish and Upper Skagit
Tribes, 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, Senior
Assistant Attorney General, Attorney General's Office, State
of Washington, Olympia, Washington, for the defendants-
appellants cross-appellees.


                               11438


James M. Johnson (Argued), Olympia, Washington, for inter-
venor defendant-appellant, 26 Tideland and Upland Private
Property 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 Tulalip
Tribes.


Riyaz A. Kanji, Williams and Connolly, Washington, D.C.,
for plaintiffs-appellees cross-appellants Jamestown, Lower
Elwha 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 Suquamish
Tribe.


Daniel A. Raas and Harry L. Johnsen, for the Lummi Tribe.

Richard Berley, John Arum, Mark Slonim, for the Makah
Tribe.


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 Island
Tribe.


                               11439


Robert L. Otsea, for the Muckleshoot Tribe.

Kathryn Nelson and Amy C. Lewis, co-counsel for the Port
Gamble, Lower Elwha and Jamestown Bands of S'Klallams
and the Skokomish Tribe.


Leslie Barnhart, Lori Salzarulo, and Ruth Kennedy for the
Quileute 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 Crab
Association and Washington Dungeness Crab Fishermen's
Association.


Stephanie L. Striffler, Assistant Attorney General, Salem,
Oregon, for amicus curiae State of Oregon.


Nancie Marzulla, Washington, D.C., for amicus curiae
Defenders 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.


_________________________________________________________________

                               11440


ORDER

The Opinion filed January 28, 1998, slip op. 783, and
appearing 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 it
with, "The other Grower beds will be subject to the allocation
analysis 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 beds
where the Growers, or their predecessors, began their
enhancement efforts on a natural bed. For such natural beds,
the Growers shall demonstrate what portion of their harvest is
due to their labor, as opposed to what portion would exist
absent the Growers' enhancement. See Shellfish II., 898 F.
Supp. at 1462. For such enhanced natural beds, the Tribes
shall be entitled to fifty percent of the pre-enhanced sustain-
able shellfish production from those beds.12/ Of course, this
allocation analysis does not apply to artificial beds, that is, to
Grower beds that did not support a sustainable commercial
density of shellfish prior to cultivation. As the Tribes have
acknowledged, 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


                               11441


      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 it
with five paragraphs as follows:


"Of particular concern to the Tribes is the restriction that
allows the Growers to control access to natural clams by
choosing not to harvest them in favor of the oysters under
which the clams are found. The Tribes describe this restriction
as a "gaping loophole" that has the capacity at the Growers'
discretion to deny to them the very rights to natural clams
which our holding confirms.


The Growers' counter with the argument from the record
that the process of harvesting natural clams from underneath
the oyster beds can seriously disrupt and suffocate their oys-
ters.


On reflection, the Tribes' concerns-- although certainly not
fanciful--are based at this point on speculation as to what
might happen in the future. The Growers, for example, repre-
sent that "where there are substantial economic benefits to a
Grower 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 of
those clams." The Growers say that they are " commercial
farmers--if there is money to be made, the resource assuredly
will be exploited."


Under the circumstances, we believe that the district court's
restrictions do not amount at this time to an abuse of discre-
tion. The district court attempted to fashion a prospective
solution to a difficult situation by balancing the parties'


                               11442


respective interests. The district court's restrictions safeguard
the Tribes' right of access to the ancient fisheries, but also
protect the interests of the Growers and Private Owners.
Importantly, in this aspect of the court's decision the court did
not use equity as the basis for its interpretation of the deci-
sion, but only as a way to implement its correctly reasoned
interpretation of the Proviso. While the Tribes may not be
happy with the limits imposed on their harvesting, they are
still able to effectuate their allocation under the Treaties and
are not excluded from their ancient fisheries.


We are confident that any future practices by the Growers
that 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 any
wrinkles that might crop up. The best way to avoid such prob-
lems, of course, is for the parties constructively to work
together 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 with
a new concurring opinion as reflected in the amended opinion
filed herewith.


With these amendments, the panel has voted unanimously
to deny the petition for rehearing and to reject the suggestion
for rehearing en banc.


The full court has been advised of the suggestion for
rehearing en banc and no judge of the court has requested a
vote on it. Fed. R. App. P. 35(b).


The petition for rehearing is DENIED and the suggestion
for rehearing en banc is REJECTED.


_________________________________________________________________

                               11443


OPINION

TROTT, Circuit Judge:

I. OVERVIEW

The State of Washington, groups of private tideland prop-
erty owners ("Private Owners"), and commercial shellfish
growers ("Growers") (collectively, "Appellants") appeal the
district court's judgment following two bench trials in an
action brought by numerous Indian Tribes1  (the "Tribes") and
the United States (on the Tribes' behalf) seeking a declaration
of rights to shellfish under the Stevens Treaties ("Treaties").
The United States and the Tribes cross-appeal the district
court's order implementing the Tribes' rights.


In 1855, the United States negotiated five Treaties with the
Tribes in the Western Washington Territory. The Tribes
ceded 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 annuity
payments. The Treaties also reserved to the Tribes the "right
of 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 that
this treaty language entitles the Tribes to take fifty percent of
the salmon and other free-swimming fish in the waters con-
trolled by Washington State. The Tribes' rights to shellfish
under the Treaties, however, are limited by the following pro-
viso (the "Shellfish Proviso"): "Provided, however, That they
_________________________________________________________________
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, Jamestown
S'Klallam, Suquamish, Swinomish, Hoh, Stillaguamish, Sauk Suiattle,
and Quileute. The Yakima Tribe, which participated in the proceedings
below, did not appeal the district court's decision that the right to take
shellfish is not reserved in its treaty with the United States.


                               11444


shall not take shellfish from any beds staked or cultivated by
citizens."


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. The
court then concluded that the Tribes have a right to take one
half of the harvestable shellfish of every species found any-
where within their usual and accustomed fishing areas, except
as expressly limited by the Shellfish Proviso. The court inter-
preted the Shellfish Proviso "only to exclude Indians from
artificial, or planted shellfish beds; [the parties to the Treaties]
neither contemplated nor desired that the Indians would be
excluded from natural shellfish beds." United States v. Wash-
ington, 873 F. Supp. 1422, 1441 (W.D. Wash. 1994). The
court's conclusions substantially reflect the position of the
Tribes and of the United States, which the court found to be
"overwhelmingly" supported by the historical evidence of the
intent of the signatory parties to the Treaties.


After its decision interpreting the Treaties, the district court
held a second trial to determine a plan for implementing the
Tribes' shellfishing rights ("Implementation Plan"). Employ-
ing principles of equity, the court refined its definition of
"cultivated" under the Proviso and precluded the Tribes from
harvesting shellfish on most of the commercial Growers'
property. In addition, the court placed time, place, and manner
restrictions on the Tribes' ability to harvest from privately-
owned land. Finally, the court devised a system for the
appointment 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 we
affirm in part and reverse in part.


                               11445


II. HISTORICAL BACKGROUND

A. 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 much
less 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 the
leadership of Governor Isaac Stevens, were well aware of the
Tribes' use and reliance on a wide variety of fish, including
shellfish. "The United States' primary purpose[in entering
the Treaties] was to extinguish the Indians' title to the lands
in 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 "Shellfish
I"]. Because of the Tribes' extensive reliance on fish, how-
ever, "[t]he United States was aware that . .. it was clearly
necessary to preserve the Indians' fishing rights. " Id.
"Whatever land concessions [the Tribes] made, the Indians

viewed a guarantee of permanent fishing rights as an absolute
predicate to entering into a treaty with the United States." Id.
at 1437.


At the time of the Treaties, a shellfish-cultivation industry
had begun to develop at Shoalwater Bay in the Washington
Territory. The United States treaty negotiators were familiar
with the practices of that industry, which was modeled after
the larger, older, and more developed shellfish industry on the
East Coast of the United States. Id. at 1434. Shellfish farmers
created "cultivated" beds (ones on which shellfish spawn
would not naturally set) by removing oysters from their natu-
ral beds to areas where they could grow more rapidly, or by
placing shells or other material to harden the bottom and
thereby 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 removed


                               11446


from other beds until they could be shipped to market. These
staked beds did not naturally contain shellfish of the type
being stored, and their boundaries were marked for identifica-
tion purposes with stakes extending above the surface of the
water at high tide. Id. at 1432-37.


Fish, including shellfish, were exceptionally abundant and
considered inexhaustible at treaty time. Id. at 1438. Hence,
the United States negotiators believed that preserving Indian
fishing rights would not interfere with the rights of citizens.
The "negotiators were aware of the thriving shellfish industry
in fully-developed East Coast cities, and likely assumed based
on those examples that development in the Puget Sound and
on 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 Territory
in 1854 and 1855.2 Through each of these Treaties, in substan-
tially identical language, the Tribes secured their preexisting
right 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 . . . .
_________________________________________________________________
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 of
Olympia, July 1, 1855, 12 Stat. 971.


                               11447


Treaty of Medicine Creek, supra, Art. III.

B. Post-Treaty Developments

In the years immediately following the Treaties, the Indians
harvested the majority of the shellfish resource. In 1879, how-
ever, the territorial legislature passed a law that, for the first
time, allowed citizens the exclusive right to use and harvest
natural oyster beds. Shellfish I, 873 F. Supp. at 1440.
"Washington became a state in 1889, and in 1895 it passed
legislation (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 off
the "vast majority" of its tidelands to private owners. Id. at
1439.


Uncontradicted evidence at trial showed that native shell-
fish populations have declined dramatically and have been
replaced to a large extent by foreign species introduced into
the area after the Treaties. For example, native littleneck
clams have been replaced by the introduced species, manila
clams, which comprised over eighty percent of the total clam
harvest in the Puget Sound from 1988-90. This litigation--
initiated by the Tribes and United States--is the consequence
of the increasing competition for, and depletion of, the shell-
fish resource.


III. PROCEDURAL HISTORY

In 1970, the United States and the Tribes brought suit
against the State of Washington seeking an interpretation of
the Treaties and an injunction to enforce the Tribes' fishing
rights. 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 nature
and extent of the Tribes' off-reservation fishing rights with


                               11448


respect to anadromous fish.3 That decision established the
locations of the Tribes' usual and accustomed grounds and
stations and found that the Tribes were entitled to take fifty
percent of the harvestable fish from those grounds and sta-
tions. We affirmed in United States v. Washington, 520 F.2d
676 (9th Cir. 1976) [hereinafter "Washington II"]. The
Supreme Court substantially affirmed that decision, conclud-
ing that the trial court had correctly adjudicated the nature and
extent of the Tribes' fishing rights. Washington v. Washington
State Commercial Passenger Fishing Vessel Ass'n, 443 U.S.
658 (1979) [hereinafter "Fishing Vessel "]. The Supreme
Court's decision in Fishing Vessel marks the seventh time that
the Supreme Court has addressed the fishing clause of the Ste-
vens Treaties.4


The district court in Washington I reserved jurisdiction to
hear future unresolved issues arising out of the Treaties.
Under the court's procedures, the Tribes must bring a request
for adjudication of their fishing rights to the court's attention
through the filing of a "Request for Determination."
Washington I, 384 F. Supp. at 419.


In 1989, pursuant to the above procedure, sixteen Indian
Tribes, later joined by the United States, filed an action in the
district court seeking a declaration of the nature and extent of
their shellfishing rights.5 The district court's decision in
_________________________________________________________________
3 Anadromous fish are fish that migrate up rivers from the sea to breed
in 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, 391
U.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 following
groups subsequently intervened in the proceeding: the Puget Sound Shell-
fish Growers, representing commercial shellfish growers; the Alexander


                               11449


Shellfish I interpreted the Treaties to award fifty percent of the
shellfish 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 the
implementation trial was to receive evidence regarding pro-
posed plans to implement Shellfish I. Parties submitted com-
peting plans. On August 28, 1995, the district court
announced 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 the
Tribes' Treaty fishing right when they acquired their
property." Id. at 1457. "Consequently, it is incumbent upon
this Court to use its equitable powers to effect a balance
between the Tribes' Treaty shellfishing right and the Grow-
ers' and Owners' interest in the peaceful enjoyment and/or
commercial development of their property." Id. The district
court then made several important rulings.


First, the court ruled that, when the State acts on behalf of
its 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 tribal
harvesting from "beds staked or cultivated by citizens." Id. at
1459-60. The effect of this ruling is to exclude the Tribes
from 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 the
_________________________________________________________________
group and Adkins group of private tideland owners; and a group of private
property owners affiliated with the United Property Owners of Washing-
ton ("UPOW"). The district court denied motions to intervene filed by the
Inner Sound Crab Association, Dungeness Crab Harvesters Association,
and the Washington Harvest Divers Association. That ruling was recently
affirmed by this Court. See United States v. Washington, 86 F.3d 1499
(9th Cir. 1996).


                               11450


future by the Growers. The court concluded that a "natural
shellfish bed" is a "bed which is capable of sustaining a yield
of shellfish that will support a commercial livelihood." Id. at
1461. The court then found that the minimum density of
manila clams that will support a commercial livelihood is 0.5
pounds of mature clams per square foot.


Third, the court redefined "artificial beds," which are
exempted by the Shellfish Proviso from the reach of the
Tribes' 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 should
not benefit from the Growers' efforts to enhance the shellfish
resource on their own properties. Id. at 1461-62. The court
therefore modified the definition of "cultivated " to encompass
the "wide range of techniques used by the Growers to enhance
production of shellfish on their property." Id. The court
referred to these beds as "de facto artificial beds." Id. at 1462
& n.18. Under the court's ruling, only "those beds whose
existence is entirely due to the natural propagation of the
species" 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 on
upland access across private property absent consent by the
owner.


The court also set forth dispute resolution procedures, call-
ing for a panel of four special masters: one selected by the
Tribes, one by the Growers, one by the Private Owners, and
one by the State. Id. at 1475-76. A single master, drawn from
the four, determines each dispute. Under the court's decision,
the masters have the power to award damages against Tribes
who violate the Implementation Plan. Id.


In response to motions to reconsider its decision in
Shellfish II, the district court amended its decision on Decem-


                               11451


ber 18, 1995. United States v. Washington, 909 F. Supp. 787
(W.D. Wash. 1995) [hereinafter "Shellfish III"]. In Shellfish
III, the court revised its ban on upland tribal access to shell-
fish beds absent consent of the landowner by allowing tribes
to cross private land after a showing of "the absence of access
by 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 the
special master to award damages against the Tribes. The mas-
ter is still able to award damages against individual tribal
members who damage private property during exercise of
fishing rights, but he or she cannot award damages against the
Tribes themselves. Id. at 793-94.


IV. STANDARD OF REVIEW

All parties agree that the meaning of the Treaty language
is ultimately a question of law reviewed de novo. United
States v. Washington, 969 F.2d 752, 754 (9th Cir. 1992).
Although several Private Owner groups assert that the district
court's findings regarding the "negotiators' intentions and
expectations" are mixed issues of law and fact reviewed de
novo, we have previously reviewed a district court's findings
of parties' intent in entering Indian Treaties "[u]nder the
highly deferential clear error standard." See, e.g., Confeder-
ated Tribes of Chehalis Indian Reservation v. Washington, 96
F.3d 334, 343 (9th Cir. 1996), cert. denied, 117 S. Ct. 1432
(1997). We therefore review for clear error all of the district
court's findings of historical fact, including its findings
regarding the treaty negotiators' intentions. We then review
de novo whether the district court reached the proper conclu-
sion as to the meaning of the Shellfish Proviso given those
findings.


We review for an abuse of discretion the district court's
equitable orders. The district court abuses its discretion when
its equitable decision is based on an error of law or a clearly


                               11452


erroneous 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 United
States, shall be the supreme Law of the Land and the Judges
in 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 treaty
terms. 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, 443
U.S. at 675. This analysis of the parties' intentions "begin[s]
with the text of the treaty and the context in which the written
words 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 beyond
written words to the history of the treaty, the negotiations, and
the practical construction adopted by the parties.' " Id. at 535

(quoting Choctaw Nation of Indians v. United States, 318
U.S. 423, 431-32 (1943)).


The Shellfish Proviso is an exception to the Tribes' broad
fishing rights. "A proviso is strictly construed, and only those
subjects expressly restricted are freed from the operation of
the statute." Sutherland on Statutory Construction, S 20.22, at
110 (5th ed. 1992).


Courts have uniformly held that treaties must be liberally
construed in favor of establishing Indian rights. Confederated
Tribes 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 in
the unique trust relationship between the United States and


                               11453


the Indians.' " Id. (quoting Oneida County v. Oneida Indian
Nation, 470 U.S. 226, 247 (1985)).


VI. DISCUSSION

A. 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 a
right to take shellfish of every species found anywhere within
the Tribes' usual and accustomed fishing areas, except as
expressly 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 to
take 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 Treaty
right to certain "deep-water" species7 of shellfish that were
not historically harvested in shallower waters and on tide-
lands. We respectfully reject this contention because it is
plainly inconsistent with the language of the Treaties, the law
of the case, and the intent and understanding of the signatory
parties. See Shellfish I, 873 F. Supp. at 1430.


[2] With all deference to the State, there is no language in
the Treaties to support its position: the Treaties make no men-
_________________________________________________________________
6 The State of Oregon has filed an amicus brief joining Washington in
this argument.
7 The deep-water species include: geoduck (pronounced "gooey duck"--
a kind of giant clam), sea urchin, sea cucumber, and certain species of crab
and shrimp.


                               11454


tion of any species-specific or technology-based restrictions
on the Tribes' rights. The district court aptly noted that, had
the Treaty parties intended to limit the harvestable species, the
parties would not have chosen the word "fish. " The word
"fish" has "perhaps the widest sweep of any word the drafters
could have chosen." Id. Thus, the district court correctly
chose 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 right
secured by the treaties to the Plaintiff tribes is not limited as
to species of fish, the origin of fish, the purpose or use or the
time or manner of taking . . . ." Washington I, 384 F. Supp.
at 401. Moreover, the court determined that the Treaties "do
not prohibit or limit any specific manner, method, or purpose
of taking fish." Id. at 402. We previously affirmed these con-
clusions "in all respects," Washington II, 520 F.2d at 693, and
we continue to believe they are correct.


[3] Washington relies heavily on the Supreme Court's
statement 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 United
States. United States v. Winans, 198 U.S. 371, 380-81 (1905).
In Winans, the Supreme Court upheld the Indians' right of
access over private property in order to fish in the Columbia
River. Id. at 384. The Court construed the fishing rights in the
Stevens Treaty as "not a grant of rights to the Indians, but a
grant of rights from them--a reservation of those not
granted". 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


                               11455


      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 more
restrictive reading of the Treaties would be contrary to the
Supreme 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 Tribes
are 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 that
the right of taking fish within "all usual and accustomed
grounds and stations" of a Tribe does not vary by species of
fish. They contend that the Tribes' "usual and accustomed"
fishing grounds for shellfish are not coextensive with the
usual and accustomed grounds for the taking of other fish, the
boundaries of which were determined in Washington I. They
suggest 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 fishing
location where members of a tribe customarily fished. . . is
a usual and accustomed ground or station at which the treaty
tribe reserved, and its members presently have, the right to
fish." 384 F. Supp. at 332. That court heard extensive evi-
dence and made findings with respect to each Tribes' usual
and accustomed fishing grounds. Id. at 359-82. Since the time
Judge Boldt made these findings, courts considering fishing


                               11456


disputes under the Treaties have never required species-
specific findings of usual and accustomed fishing grounds. In
fact, the district court in a prior proceeding on a related Ste-
vens Treaties case found that the usual and accustomed
grounds and stations for herring (a non-anadromous fish)
were co-extensive with those previously adjudicated for
salmon (an anadromous fish). United States v. Washington,
459 F. Supp. 1020, 1049 (W.D. Wash. 1978) (ruling that the
tribes may take herring at all of its usual and accustomed fish-
ing places to the same extent and subject to the same terms
and 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. "Little
documentation of Indian fishing locations in and around 1855
exists today." 459 F. Supp. at 1059. If each Tribe were
required to prove its usual and accustomed grounds for every
species of fish and shellfish, the time and cost to the court and
parties would be unreasonably burdensome.


[6] In light of the above, the district court was correct in
concluding that the Tribes' usual and accustomed grounds for
shellfish are co-extensive with the Tribes' usual and accus-
tomed fishing grounds, which have been previously decided
by 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 on
the tidelands. "Under the Equal Footing Doctrine, every new
state is entitled to entrance into the Union free of any encum-
brance on its land, so that it stands on `equal footing' with the
other states." Shellfish I, 873 F. Supp. at 1442-43 (citing
Shively v. Bowlby, 152 U.S. 1 (1894)). "The`Shively
presumption' is an outgrowth of this doctrine, and holds that


                               11457


any pre-statehood grant of property does not include tidelands
unless the grant clearly indicated that tidelands were
included." Id. at 1443 (citation omitted). We conclude that the
language of the Treaties, the law of this case, and the
Supreme 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 harvest
shellfish would amount to a property interest in the tidelands,
and because the Treaties do not clearly specify an intent to
grant a property interest in the tidelands, the Treaties cannot
be 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 Shively
presumption." 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. United
States, 450 U.S. 544 (1981). Both cases involved disputes
over Indian title rights to lands underlying navigable waters.
In both cases, the Supreme Court applied the Shively
presumption and concluded that the treaties at issue "did not
by [their] terms formally convey any land to the Indians at
all." Montana, 450 U.S. at 553. In Holt State Bank, the Court
concluded "there was nothing in [the treaties ] which even
approaches a grant of rights in lands underlying navigable
waters." 270 U.S. at 58.


In the instant case, however, "the Tribes possess the dis-
puted rights [to harvest shellfish] pre-treaty, and the treaty
simply 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-


                               11458


      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's
persuasive reasons for rejecting the application of the Shively
presumption to defeat the Tribes' shellfishing rights.


[8] We note that "the Supreme Court has applied the Equal
Footing Doctrine in one context only, namely when evaluat-
ing a claim of right to lands beneath navigable waters based
upon 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 question
is whether the United States conveyed beneficial ownership of
the riverbed to the Crow Tribe by the Treaties of 1851 or
1868."); Holt State Bank, 270 U.S. at 57 (adjudicating the
question of "whether the lands under the lake were disposed
of 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 that
title to the lakebed remained in federal ownership by selection
of the lake as a reservoir site prior to Utah's statehood).
Unlike the above cases, the instant case does not involve
ownership of tidelands. The Tribes do not claim ownership of

the tidelands; the Tribes merely assert their right to harvest
shellfish within the tidelands, regardless of ownership.


[9] Moreover, application of the Equal Footing Doctrine
has already been rejected in the context of the Stevens Trea-
ties fishing rights. First, the Supreme Court in Winans noted:


                               11459


      [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 Footing
arguments 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 no
reason or rule that would mandate the application of the Equal
Footing Doctrine to limit the Tribes' fishing rights in this
case. The language of the Treaties, the law of this case, and
the Supreme Court's prior applications of the Equal Footing
Doctrine all preclude its application here.


                               11460


4. The Tribes are entitled to harvest shellfish on
      privately-owned tidelands.


The Private Owners contend that the Tribes' right to take
shellfish does not include the right to take shellfish found on
privately-owned tidelands. The Private Owners argue that the
Treaties gave the Tribes the same common right to harvest
shellfish as that enjoyed by non-Indian citizens, and that this
common 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 rejected
arguments to the effect that Indian treaties reserve to the Indi-
ans no more fishing rights than those enjoyed by non-Indian
citizens. See Winans, 198 U.S. at 380 (rejecting lower court
ruling that Indians had no more rights than any inhabitant of
the 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 usual
and accustomed places" and the right "of erecting temporary
buildings 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 were
given a right in the land." Id. Winans directly contradicts the
Private Owners' argument: the Supreme Court has made clear
that the Tribes' fishing rights in their usual and accustomed
places are not diminished by private ownership of those lands.
In fact, the Court noted that the Treaties "imposed a servitude
upon every piece of land as though described therein." Id.


[12] Moreover, in Fishing Vessel, the Supreme Court
explicitly recognized that the "[T]reaties provide Indians with


                               11461


certain rights--i.e., the right . . . to cross private lands--that
non-Indians do not have." Fishing Vessel, 443 U.S. at 676
n.22. The district court acknowledged this right in Shellfish III
and 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 implicate
private 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, tidal
impoundment traps, stake nets and reef nets." Shellfish I, 873
F. 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. The
Supreme Court has said that "[i]t is absolutely clear, as Gov-
ernor Stevens himself said, that neither he nor the Indians
intended that the latter should be excluded from their ancient
fisheries, and it is accordingly inconceivable that either party
deliberately agreed to authorize future settlers to crowd the
Indians out of any meaningful use of their accustomed places
to fish." Fishing Vessel, 443 U.S. at 676.


The Private Owners also contend that shellfish are different
than anadromous fish because they have traditionally been
held to be a part of the land. The district court rejected this
contention, stating that "the uniform common law at treaty
time held that private ownership of a parcel of tideland did
not include private rights to the shellfish on that parcel."


                               11462


Shellfish I, 873 F. Supp. at 1439. In support of this proposi-
tion, the district court cited Joseph Angell's 1847 Treatise on
the 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 happens
to be private property."


[13] On appeal, both the Tribes and the Private Owners cite
several cases in support of their respective contentions that
the right to harvest shellfish from private property was (or
was not) permitted at Treaty time. See Smith v. Maryland, 59
U.S. (18 How.) 71, 74-75 (1855) (stating that "the enjoyment
of 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 public
rights applied "as well for shell-fish and floating fish"). But
see Den v. The Jersey Co., 56 U.S. 426, 432-33 (1853)
("Clams ordinarily live in the soil under the waters, and not
within the waters. . . . They therefore, in a very material sense,
belong with the land."). Regardless of whether shellfish were
a 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 the
right to take shellfish from the tidelands within their usual and

accustomed grounds, without regard to the public or private
nature of their ownership. As the district court stated in
Washington I, "[b]ecause the right of each treaty tribe to take
anadromous fish arises from a treaty with the United States,
that right is reserved and protected under the supreme law of
the land, does not depend on state law, is distinct from rights
or privileges held by others, and may not be qualified by any
action of the state." 384 F. Supp. at 402. Thus, whatever the
status of the state law at the time of the Treaties or today, the
Treaties represent the supreme law of the land and give to the
Tribes the right to take shellfish from private tidelands. See
Fishing Vessel, 443 U.S. at 682 (stating that "neither party to
the treaties may rely on the State's regulatory powers or on
property law concepts to defeat the other's right to a `fairly


                               11463


apportioned' 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 to
harvest shellfish on private tidelands.


B. THE DISTRICT COURT PROPERLY
      INTERPRETED THE MEANING OF THE
      SHELLFISH PROVISO.


The Treaties' fishing clauses were expressly limited by the
Shellfish Proviso, which prohibited the Tribes from taking
shellfish from "any beds staked or cultivated by citizens." The
district court "interpret[ed] the terms`staked' and `cultivated'
as the terms were defined and used in the shellfishing industry
at and before treaty time." 873 F. Supp. at 1441. The district
court concluded that, when the signatory parties used those
terms in the Proviso, "they intended only to exclude Indians
from artificial, or planted, shellfish beds; they neither contem-
plated nor desired that the Indians would be excluded from
natural shellfish beds." Id. "Therefore, the words `any beds
staked or cultivated by citizens,' describe artificial shellfish
beds created by private citizens." Id.


[15] The Growers offered the district court an alternative
definition of staked or cultivated that "starts and ends with the
treaty-time dictionary." Id. at 1431. The district court noted
that under the Growers' theory, "any shellfish bed extant
today that is surrounded by stakes, or in some fashion
improved by human labor, would be off limits to the Indians."
Id. The Private Owners make a similar contention, arguing
that " `staked' should be interpreted in its `frontier' context
and 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 by
the Shellfish Proviso." Id. The district court rejected the


                               11464


Growers' and Private Owners' definitions, analyzing the
Shellfish 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' at
treaty time." Id. at 1431-42. Given the deferential standard by
which we review the district court's findings of historical fact
and its findings regarding the intentions of the parties' negoti-
ators, we conclude the district court did not err in interpreting
the Proviso and we adopt its analysis as our own. Moreover,
we believe that the district court's reasoned analysis of the
Proviso is correct. We emphasize three additional points.


First, the Growers' and Private Owners' interpretations are
not based on the common understanding of the phrase "beds
staked or cultivated" within the context of the shellfishing
industry 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 fledgling
shellfishing industry. Although the Growers may have pres-
ented evidence to the contrary, none of this evidence leaves
us with a "definite and firm conviction" that a mistake has
been committed. See Sawyer v. Whitley, 505 U.S. 333, 346
n.14 (1992). It was therefore not clear error for the district
court to have rejected Appellants' interpretation and to have
adopted the Tribes' position.


Second, the Growers' interpretation is totally inconsistent
with the "United States' avowed intention to preserve for the
Indians their ancient fisheries." Id. at 1437. The Growers' and
Private Owners' interpretations would read the Proviso to
effectively eliminate the Tribes' right to take shellfish under
the Treaties. Surely, Governor Stevens would not have
intended such a result, especially in light of the historical cir-
cumstances surrounding the Treaties' negotiations. In fact, the


                               11465


benevolent 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 district
court 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 which
seemed to promise more, and give the word of the nation for
more." Winans, 198 U.S. at 380.


Third, the Appellants' interpretation of the Proviso casts
aside black-letter canons of statutory construction and treaty


                               11466


interpretation. The Shellfish Proviso is an exception to the
Tribes' otherwise broad fishing rights. "A proviso is strictly
construed, and only those subjects expressly restricted are
freed 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 rooted
in the unique trust relationship between the United States and
the Indians.' " Id. (quoting Oneida County v. Oneida Indian
Nation, 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 of
laches to defeat the Tribes' claim to shellfish. The doctrine of
laches is defined as "neglect to assert a right or claim which,
taken together with lapse of time and other circumstances
causing 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 facts
call for new law." Growers' Opening Brief at 44.


[16] The Growers ask for new law simply because current
law precludes their argument. In Swim v. Bergland, 696 F.2d
712, 718 (9th Cir. 1983), we held that "laches or estoppel is
not available to defeat Indian treaty rights." Although the
equities do weigh heavily in favor of the Growers' argument
--the Tribes waited 135 years to assert their shellfishing
rights--the law does not support their claim. See Board of
County Comm'rs v. United States, 308 U.S. 343, 350-51
(1939) (defenses based on delay in bringing claims such as
laches and estoppel are inapplicable to claims to enforce


                               11467


Indian rights). Once again, we reiterate that we are interpret-
ing a treaty, and that treaties enjoy a unique position in our
law.


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 rejected
this theory over twenty years ago, see United States v. Wash-
ington, 459 F. Supp. 1020, 1039-42 (W.D. Wash. 1978), and
we 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 decision
that it lacked authority to rewrite or interpret the terms of the
treaties to avoid hardship to any party based on its own
notions of the equities. The implementation decision, the
Tribes contend, erroneously redefined the terms of the treaties
in 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, and
manner" restrictions on the Tribes' ability to harvest shellfish.


We hold that the district court impermissibly employed
equitable powers to rewrite the Treaties' terms. However, we
also hold that allocating fifty percent of the commercial
Growers' shellfish harvest to the Tribes would unjustly enrich
them. Such an allocation would simply not comport with
Fishing Vessel's concept of giving the Tribes a "fair share" of
the harvest.


                               11468


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 a
balance between the Tribes' Treaty shellfishing right and the
Growers' 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 Growers
licensed by the State of Washington." Id. at 1461. The court
then deemed natural shellfish beds that have been enhanced
by human means "de facto artificial beds" upon which the
Tribes may not take shellfish.8Id. at 1462. "Permitting the
Tribes to harvest fifty percent of the shellfish from de facto
artificial beds would confer a windfall on the Tribes, and
would neither protect nor encourage the growth of the shell-
fish industry." Id.


In support of its use of equitable principles, the district
court and Appellants primarily rely on five cases: Yankton
Sioux 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 and
acknowledging that equitable considerations might have lim-
_________________________________________________________________
8 The court declared that only "those beds whose existence is entirely
due 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 due
to the Grower's efforts, albeit passively, such as the `natural' migration of

shellfish from an artificial bed to a new spot." Shellfish II, 898 F. Supp.
at 1462.


                               11469


ited the remedies available had the plaintiff tribe prevailed on
its 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.2d
835 (9th Cir. 1982) (in an action to quiet title to a parcel of
land, equitable considerations would not bar the claim to the
land entirely, but "[l]ack of diligence by the government in
exercising its role as trustee may be weighed by the district
court in calculating damages" for several decades of loss of
use 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 plaintiff
Indians, 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 far
from clear that [laches] is available in suits such as this one"
to restore Indian lands to Indians pursuant to treaty rights. In
fact, 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 Indian
treaty, 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 to
assist in fashioning the remedy and in interpreting the Treaty.9


[17] The Tribes, on the other hand, cite persuasive and
unambiguous Supreme Court authority. The district court's
re-interpretation violates the Supreme Court's admonition in
_________________________________________________________________
9 The Imperial Irrigation District case provides little support for the
Appellants. First, it is currently pending on appeal. Second, it is stayed
pending settlement discussions. See 799 F. Supp. at 1068.


                               11470


United 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 district
court 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 their
prejudice" and that words should be construed as they "were
understood by this unlettered people, rather than their critical
meaning"). Under these rules of construction, the Choctaw
precedent, and the district court's own statements in Shellfish
I, the district court abused its discretion by applying notions
of equity to redefine the term "cultivate."


[18] It does not follow from the above, however, that the
district court is without the ability to use equity in


                               11471


implementing its Treaty interpretation. As laid out below, we
believe the district court should have used its equitable pow-
ers only to limit the take of the Tribes--not the location--so
as 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 in
Fishing Vessel, 443 U.S. at 684-686. Although we conclude
that the district court correctly applied Fishing Vessel's mod-
erate living analysis, we hold that the district court should
have used equitable principles to limit the Tribe's shellfish
harvest 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 and
accustomed" place into approximately equal treaty and non-
treaty shares, and should then reduce the treaty share if tribal
needs 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


                               11472


      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 beyond
what is necessary to afford the Tribes a "moderate living."


The district court, however, heard evidence as to the
Tribes' living standards presented by both sides and con-
cluded that Appellants' experts' analyses were "flawed."10
The 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 clearly
erroneous.11
_________________________________________________________________
10 UPOW's expert, Dr. Thomas, relied solely on what he called "tribal
household 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 analysis
was 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 and
firm conviction" that the district court's findings were erroneous.


                               11473


[20] However, Fishing Vessel instructs us to give the Tribes
a "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 notions
of fairness if the Tribes were permitted to take fifty percent
of the Growers' enhanced harvest. Many of the Growers have
spent decades developing and enhancing production on their
shellfish 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 propagation
of the species are subject to a full fifty-percent harvest alloca-
tion. The other Grower beds will be subject to the allocation
analysis below.


Our decision here is consistent with our previous decision
in United States v. Washington, 759 F.2d 1353, 1358-59 (9th
Cir. 1985) (en banc), where we concluded that hatchery fish
are subject to Treaty allocation. In that decision, several
"equitable considerations" favored the Tribes' position,
including "the lack of State ownership of the fish once
released" and "the lack of any unjust enrichment of the
Tribes." Id. Here, however, those same equitable consider-
ations do not support the Tribes' allocation of fifty percent of
the Growers' shellfish. First, unlike hatchery fish--which are
replacement 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, the
Tribes would be unjustly enriched if they were entitled to a
full fifty percent of the Growers' shellfish. The Tribes can-
didly admitted as much at oral argument when they conceded
that equity should permit a Grower to protect his enhanced
harvest "for a couple of years." We believe not for a couple

of 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 it
was insufficient to support a commercial livelihood. Shellfish


                               11474


I, 873 F. Supp. at 1437-38; see also id. ("To the extent [the
Proviso] prohibited Indians from taking shellfish from both
artificial 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 excluded
from their ancient fisheries; they are merely precluded from
taking an unfair share.


[21] We therefore apply the following analysis to Grower
beds where the Growers, or their predecessors, began their
enhancement efforts on a natural bed. For such natural beds,
the Growers shall demonstrate what portion of their harvest is
due to their labor, as opposed to what portion would exist
absent the Growers' enhancement. See Shellfish II., 898 F.
Supp. at 1462. For such enhanced natural beds, the Tribes
shall be entitled to fifty percent of the pre-enhanced sustain-
able shellfish production from those beds.12 Of course, this
allocation analysis does not apply to artificial beds, that is, to
Grower beds that did not support a sustainable commercial
density of shellfish prior to cultivation. As the Tribes have
acknowledged, the Tribes have no right to harvest such beds.
898 F. Supp. at 1460-61.


We place the burden of proving pre-enhancement harvest
versus post-enhancement harvest on the Growers--for the
Growers are best able to prove such a calculation. 13 We
remand to the district court for a determination as to the best
manner to implement this allocation. We emphasize that this
_________________________________________________________________
12 For example, if ten clams per square foot were a density sufficient to
support a commercial livelihood 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.
13 One way to do this would be to compare a Grower's bed's earliest
shellfish production figures with the bed's current output. This could serve
as one of the bases by which to calculate the proper allocation amount.


                               11475


"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 the
Shellfish Proviso, "includes the State of Washington, when
the State acts on behalf of the public." Id. at 1459-60. The
court noted that "the five million residents of the State are
blameless in this controversy, and the Court believes that the
benefits and efficiencies of permitting the State to act on their
behalf in growing the State's shellfish resource far outweigh
any 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 artificial
shellfish beds on public property, those beds shall be deemed
`staked or cultivated by citizens' and thus excluded under the
Shellfish Proviso from the Tribes' Treaty right. " Id. Because
the court once again improperly invoked equitable principles
in its interpretation of the Treaty, and there is no support in
the law for the proposition that a state can be a "citizen," we
reverse 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 act
of Congress to enable a corporation to be considered a citizen
for 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.


                               11476


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 "in
light of the practices and understandings in the shellfish
industry 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 "bed
capable of sustaining a yield of shellfish that will support a
commercial livelihood." Id. The Tribes do not dispute these
findings, but contend that the district court committed clear
error when it found that the minimum quantity of manila
clams that will support a commercial livelihood is 0.5 pounds
of mature clams per square foot. Manila clams are the only
species for which the district court made such a finding.
Because there is insufficient evidence in the record to support
the district court's finding, we conclude that the district court
clearly erred.14


[24] No witness gave an opinion as to the density of manila
clams necessary for a successful commercial harvest. No doc-
ument in the record sets forth any analysis of what density is
necessary for commercial success. There is a document in the
record which purports to show the densities of twelve manila
clam beds leased from the State of Washington, but twelve
beds 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 an
extremely limited sample when a broader sample . . . can be
readily obtained and when no showing of the representative-
_________________________________________________________________
14 Because we conclude that the district court clearly erred, we do not
address the Tribes' contention that they were unfairly surprised and unable
to present evidence on this issue. On remand, the Tribes will have an
opportunity to present such evidence.


                               11477


ness of the sample is made") (citations omitted). Moreover,
there is no indication that these bed samples included only
mature clams in their density calculation. Significantly, two
of the twelve beds appear to have densities of less than .26
pounds per square foot.


[25] In light of the above, we reverse the district court's
finding that the minimum quantity of manila clams that will
support a commercial livelihood is 0.5 pounds of mature
clams per square foot. We remand to the district court for a
new 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 privately
owned upland property to reach shellfishing areas unless
"specifically requested from and granted by a Special
Master," with permission to be refused unless "tribal mem-
bers can demonstrate the absence of access by boat, public
road, or public right of way."15 Shellfish III, 909 F. Supp. at
793. The Tribes contend that this decision is "an unprece-
dented limitation on Tribes' treaty fishing rights."


[26] The Supreme Court has already determined that the
Tribes are entitled to a right of access across private lands to
invoke their Treaty fishing rights. Winans, 198 U.S. at 383.
Winans recognized that the Treaties "imposed a servitude
upon every piece of land as though described therein." Id. at
381. Rather than completely eliminating the Tribes' rights to
cross private land, which it could not do under Winans, the
district court engaged in a careful balancing of hardships in
fashioning its remedy. Although we have held that the district
court cannot use equitable principles in interpreting the Trea-
_________________________________________________________________
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. 989
F. Supp. at 1473.


                               11478


ties, it can use them in deciding how to implement the Trea-
ties (i.e., how the tribes will be allowed to exercise their
previously 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 in
lieu of ejectment of innocent land purchasers in order to avoid
a "great injustice").16 We therefore conclude that the district
court did not err by requiring the Tribes to prove the unavaila-
bility of other forms of access before allowing them to cross
private 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 to
subject the Tribes' Treaty shellfishing right to reasonable
time, place and manner restrictions when the right is exercised
on the Growers' or Owners' property. As discussed directly
above, the time, place, and manner restrictions present a
proper 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 to
five days per year, with some increase on larger lots, for any
private beach not controlled by a Grower, 898 F. Supp. at
1473; 2) if a Grower decides that a Tribe's proposed harvest
plan is not "compatible with the Growers' farming operation,"
the Grower may unilaterally modify the plan, and have "the
final word on how a tribal harvest will be conducted," id. at
1470; 3) the Grower may entirely prohibit harvest of natural
clams underneath areas cultivated for oysters, even when no
oysters are then present, id. at 1471; 4) no harvest may occur
_________________________________________________________________
16 The Tribes and the United States also urge us to read into the absence
of upland access showing a "reasonableness" requirement. We decline to
do so, but we direct the district court, upon remand, to clarify its order
with regard to this issue.


                               11479


on non-Grower private tidelands without a survey "to deter-
mine the existence of shellfish populations," id. at 1472; and
5) the "manner and method" of such a survey must be "of the
type currently in use by the State." Id.


Of particular concern to the Tribes is the restriction that
allows the Growers to control access to natural clams by
choosing not to harvest them in favor of the oysters under
which the clams are found. The Tribes describe this restriction
as a "gaping loophole" that has the capacity at the Growers'
discretion to deny to them the very rights to natural clams
which our holding confirms.


The Growers' counter with the argument from the record
that the process of harvesting natural clams from underneath
the oyster beds can seriously disrupt and suffocate their oys-
ters.


On reflection, the Tribes' concerns-- although certainly not
fanciful--are based at this point on speculation as to what
might happen in the future. The Growers, for example, repre-
sent that "where there are substantial economic benefits to a
Grower 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 of
those clams." The Growers say that they are " commercial
farmers--if there is money to be made, the resource assuredly
will be exploited."


Under the circumstances, we believe that the district court's
restrictions do not amount at this time to an abuse of discre-
tion. The district court attempted to fashion a prospective
solution to a difficult situation by balancing the parties'
respective interests. The district court's restrictions safeguard
the Tribes' right of access to the ancient fisheries, but also
protect the interests of the Growers and Private Owners.
Importantly, in this aspect of the court's decision the court did
not use equity as the basis for its interpretation of the deci-


                               11480


sion, but only as a way to implement its correctly reasoned
interpretation of the Proviso. While the Tribes may not be
happy with the limits imposed on their harvesting, they are
still able to effectuate their allocation under the Treaties and
are not excluded from their ancient fisheries.


We are confident that any future practices by the Growers
that 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 any
wrinkles that might crop up. The best way to avoid such prob-
lems, of course, is for the parties constructively to work
together to respect each others' rights.


We reject the Tribes' contention that the restrictions are
contrary to the Supreme Court's decision in Puyallup Tribe v.
Department of Game, 391 U.S. 392 (1968). Puyallup arose
because a series of Washington state court decisions and state
regulations imposed discriminatory restrictions on the Tribes.
The Supreme Court held "the manner of fishing, the size of
the take, the restriction of commercial fishing, and the like
may be regulated by the State in the interest of conservation,
provided the regulation meets appropriate standards and does
not discriminate against the Indians." Id. at 398 (emphasis
added). The Tribes cite no persuasive authority, however, to
support the application of these standards to an implementa-
tion order promulgated by a Federal District Court. Puyallup
applies to restrictions imposed "by the State ," not the Federal
Courts. The district court drafted the implementation order to
interpret and to enforce the Tribes' rights under the Treaties,
not to restrict those rights. The motivation underlying the

Court's decision in Puyallup--state discrimination against
tribal fisheries--is simply not a factor when a district court
imposes 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.


                               11481


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 special
masters at will and without court approval. The district court
rejected the first objection outright, noting that the two parties
to a dispute each have a twenty-five percent chance of having
their own special master selected. The Tribes contend that
Appellants have almost identical interests: therefore, the odds
are 3-1 in Appellants' favor. In fact, the district court made
a finding that "each of the other parties is adverse to the
Tribes, but not necessarily aligned with the others. " Shellfish
III, 909 F. Supp. at 790. Given the district court's finding that
the Appellants are "adverse to the Tribes," we conclude that
due process is violated if there is a seventy-five percent
chance that Appellants' master will be selected. We therefore
vacate this aspect of the implementation plan, and remand to
the district court to reconfigure the appointment of Special

Masters.

The Tribes also argue that allowing the parties to appoint
and remove the master at will compromises the independence
of the special master. Because the district court must approve
the 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 allowing
the special master to award damages against Tribal members
is legally flawed. In addition, they contend that Shellfish II
erroneously contains a provision allowing damages against
the Tribes themselves. In Shellfish III, the district court
amended its decision to preclude damage awards against the
Tribes because Tribes cannot be sued without their unequivo-
cal consent. See Oklahoma Tax Comm'n v. Potawatomi
Indian Tribe, 498 U.S. 505, 509 (1991). The district court,


                               11482


and the Tribes in their motion for reconsideration, apparently
overlooked section 6.2 of Shellfish II's implementation order.
Section 6.2 also allows special masters to award damages
against the Tribes. We therefore vacate the portion of section
6.2 that allows for a special master to award damages against
the Tribes. As set forth below, however, the special master
can award damages against individual Tribal members.


The Tribes concede that individuals may be bound by
orders affecting their "common public rights as citizens" in
litigation to which their sovereign is a party. City of Tacoma
v. Taxpayers of Tacoma, 357 U.S. 320, 341 (1958). A similar
issue arose in Fishing Vessel, 443 U.S. at 692 n.32, where the
Court concluded that non-party fishermen could be enjoined
from actions interfering with the judgment of the district
court. "[A] court clearly may order them to obey that
judgment." Id. The Tribes' assertion that "the contemplated
claims against tribal members have nothing to do with the
common rights of state or tribal citizens" therefore is without
merit. On the contrary, if tribal members damage private
property while exercising their fishing rights, they directly
implicate their sovereigns' interests and the district court's
judgment.


Similarly, the Tribes' argument that claims for trampled
shrubs, damaged docks, or littered beaches "would raise no
federal question" is also without merit. If the damages arise
out of the exercise of fishing rights based on the district
court's interpretation of the Stevens Treaties, the district court
has the authority to hear such a dispute. Moreover, the dispute
would 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 vacate
section 6.2's provision allowing damages against the Tribes.


                               11483


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 not
entitled to attorney's fees in entire United States v. Washing-
ton series of litigation). We therefore affirm the district
court's denial of fees.


VII. CONCLUSION

For the reasons discussed above, we AFFIRM IN PART
and REVERSE IN PART the district court's decisions in
Shellfish I, Shellfish II, and Shellfish III . We REMAND this
case to the district court for proceedings consistent with this
opinion. In so doing, we compliment the district court for the
clarity of its opinions previously rendered.


We recognize the enormous impact our decision will have
on the thousands of homeowners, Tribal members, and com-
mercial fishermen in the Puget Sound region. It must be
remembered that we are a court of limited jurisdiction. More-
over, we are bound by the Constitution's Supremacy Clause
which accords special standing to treaties. We do not have the
power simply to "rewrite the Treaties or interpret the Treaties
in a way contrary to settled law simply to avoid or minimize
any hardship" to any of the parties in this case. Shellfish I, 873
F. Supp. at 1429. This case has come a long way since the
1970's when a "total lack of meaningful communication" led
to "deep distrust" between the parties. 384 F. Supp. at 329-30.
The parties have apparently made sincere efforts to settle this
dispute; we hope that our decision assists and renews that
effort.


AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED FOR FURTHER PROCEEDINGS.


                               11484


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 my
views concerning the interpretation of the Stevens Treaties
and the appointment of special masters.


I

The 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 and
accustomed" tribal fishing grounds in 1854. This argument
strains even the deferential canons of Indian treaty interpreta-
tion. It is, however, the law of this case and of the Supreme
Court that the reserved fishing right makes no distinctions
between migratory fish and shellfish or between fish runs and
static fishing grounds. The origin of this rule of law is per-
plexing.


                               11485


In 1974, Judge Boldt concluded that the Indian Tribes had
treaty fishing rights which entitled them to harvest up to fifty
percent 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 limited
as to species of fish." Boldt Decision, 384 F. Supp. at 401.


Fishing Vessel held that tribes have a right to equal
amounts of fish "taken from runs of fish that pass through the
Indians' usual and accustomed fishing grounds." Fishing Ves-
sel, 443 U.S. at 689. A tribe's rights are defined in case law
by the grounds the tribe fished and not the particular species
taken. The Indians reserved the "right to take a share of each
run of fish that passes through tribal fishing areas." Id. at 679.
Implicit in the Fishing Vessel opinion is the principle that to
limit access strictly to historical fishing grounds and species
would render the right to fish a nullity because citizens could
harvest all fish downstream. Similarly, in United States v.
Winans, 198 U.S. 371 (1905), the Court determined that the
issuance of a license to erect a fishing wheel where the device
deprived Indians of the run of fish that passed through their
usual 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 no
device that prevents the migration of immobile shellfish to,
through or from the tribes' usual and accustomed fishing
grounds.


The burden imposed by our opinion cannot be overstated.
The record in this case makes abundantly clear that since
treaty times a vibrant shellfish industry has developed in the


                               11486


State of Washington along the saltwater beaches of the Pacific
Ocean and along tidelands adjoining the inland waters of
Puget Sound.


The labors of a modern day shellfish producer are vividly
recounted 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-


                               11487


      looking creatures as sea cucumbers and sea urchins
      in the lab.


Citizens -- as well as tribal members and the state -- have
long set aside suitable tidelands acquired by purchase, by
inclusion in reservation boundaries or by dedications adjoin-
ing state lands to the cultivation of clams, oysters and other
species of shellfish. The opinion we file today will open these
tidelands to the harvest of commercially valuable shellfish by
the Tribes in common with the citizens as a matter of treaty
right.


It is now clear that the Tribes are granted access to tide-
lands which contain cultivated shellfish produced by the
Growers. The details of how much and when the Tribes may
harvest shellfish from such lands remains unresolved. We
assign the Growers "the burden of proving pre-enhancement
harvest versus post-enhancement harvest." The district court
will be faced with the application of this scheme. Our sugges-
tion shifts the law that the party asserting a treaty right must
prove that right. See, e.g., United States v. Lummi Indian
Tribe, 841 F.2d 317, 318 (9th Cir. 1988) (a tribe asserting
usual and accustomed fishing grounds has the burden to pro-
duce evidence that a particular location was customarily used
at treaty time). The assignment of the burden of proof is criti-
cal. The district court, after hearing testimony, determined
that it "would be very difficult -- if not impossible -- to
develop a `snapshot' of existing shellfish beds at the time
commercial 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 of
proof is dispositive. The Growers' burden is heavy and the
district court's assignment is daunting.


The tension between grower and Indian under treaty provi-
sions is clear. One will not grow shellfish on lands bearing
natural shellfish to provide subsistence to the other without
compensation for the damage occurring to the cultivated


                               11488


shellfish. The majority asks the parties to "constructively . . .
work together to respect each others' rights." I fear the time
for that has passed. The fact that the Tribes are concerned
about the Growers' "gaping loophole" to deny them access to
naturally occurring shellfish by never allowing their beds to
be free of oyster crops evidences the tension between the par-
ties. Burden of proof and access issues that remain unresolved
in the opinion we file today guarantee continuing disputes
between 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's
Lessee 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 tidelands
by commercial growers should not deprive the Tribes of their
treaty share of shellfish; the Tribes could be allocated half of
the 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, a
_________________________________________________________________
1 Fishing Vessel makes this point clear. The Court held that "fish taken
by treaty fisherman off the reservations and at locations other than `usual


                               11489


tribal share of shellfish could come from reservation land,
government land or private tidelands acquired by the tribe.


Survival of Washington's shellfish industry depends upon
the growers' ability to dedicate tidelands to exclusive use.
This cannot be done under existing case law interpretation of
the 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 the
Supreme Court recognizes the shellfish proviso with respect
to "cultivation" and makes clear the distinctions between
migratory fish and shellfish; between fish runs and static fish-
ing grounds; and between natural shellfish and cultivated
shellfish.


II

The 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 their
shellfishing rights. United States v. Washington, 909 F. Supp.
787, 792 (W.D. Wash. 1995). If a dispute arises between a
property owner and a Treaty Tribe, concerning the exercise of
the Shellfish Treaty right, the matter is to be resolved by a
special master. Id. The Tribes, the State of Washington, the
Shellfish Growers and the Private Property Owners each are
permitted to designate a special master, one of which is to be
selected 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 is
violated" because "there is a seventy-five percent chance that
Appellants' master will be selected." We vacate and remand
to the district court to reconfigure the appointment of special

masters.
_________________________________________________________________
and accustomed' sites . . . [are] to be counted as part of the Indians'
[treaty] share." Fishing Vessel, 443 U.S. at 687 n. 29.


                               11490


Fed. R. Civ. P. 53(a), which governs the appointment of
special masters, states in pertinent part, "[t]he court in which
any action is pending may appoint a special master therein."
Reference to a master "shall be the exception and not the
rule" and shall be made "upon a showing that some excep-
tional condition requires it." Burlington Northern v. Dep't of
Revenue, 934 F.2d 1064, 1071 (9th Cir. 1991) (quoting Fed.
R. Civ. P. 53(b)). "The use of masters is `to aid judges in the
performance of specific judicial duties, as they may arise in
the progress of a cause,' and not to displace the court." La
Buy v. Howes Leather Co., 352 U.S. 249, 256 (1956) (quoting
Ex 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 in
itself is not such an exceptional circumstance as to warrant a
reference to a master." Id. at 259; see also Wright & Miller,
Federal Practice and Procedure: Civil 2d S 2601 (1995) (the

appointment of a master is for the purpose of assisting the
court to obtain facts). "The Courts have tended to read Rule
53 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 United
States 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 Indian
Tribe, 901 F.2d at 775 (noting that we could "not think of a
more 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 regarding
whether tribes must pass over private land to harvest shellfish
is complex or extraordinary. Indeed, disputes are likely to
present straightforward trespass and property questions.
Because the district court did not make a finding of complex-


                               11491


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 to
a 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 competent
to 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 an
impartial and disinterested tribunal in both civil and criminal
cases."). 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, 446
U.S. at 242. A party may establish that he has been denied his
constitutional right to a fair hearing before an impartial tribu-
nal by a showing of actual bias or the adjudicator's pecuniary

or personal interest in the outcome. Stivers v. Pierce, 71 F.3d
732 (9th Cir. 1995). In addition to the constraints of due pro-
cess, Canon 1 of the Code of Conduct for United States
Judges sets the integrity and independence of the judiciary as
an 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, presumably
because the candidates are likely to rule favorably. Whether
each side is permitted to designate one or many potential can-
didates, the result is a master that is chosen because of a real
or perceived bias. Even if the district court ultimately
approves the selection of the master and adopts the master's
report and recommendation, that does not cure the error. A
property owner subject to an unforeseen access easement or
a tribe denied access to a harvest will find little solace in the
judge's signature adopting the special master's findings.


                               11492


I would hold that the special master selection process
adopted by the district court violates due process. I would
remand to the district court to make findings supporting the
necessity for a master; to appoint an independent special mas-
ter and to give special consideration to the appointment of a
magistrate judge.


                               11493







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