                 FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

MUCKLESHOOT INDIAN TRIBE,               No. 18-35441
             Plaintiff-Appellant,

                v.                         D.C. No.
                                     2:17-sp-00002-RSM
TULALIP TRIBES; SUQUAMISH
TRIBE; PUYALLUP TRIBE; SQUAXIN
ISLAND TRIBE, of the Squaxin              OPINION
Island Reservation; NISQUALLY
TRIBE; SWINOMISH INDIAN TRIBAL
COMMUNITY; STATE OF
WASHINGTON; JAMESTOWN
S’KLALLAM TRIBE; PORT GAMBLE
S’KLALLAM TRIBE; SKOKOMISH
INDIAN TRIBE,
           Respondents-Appellees,

               and

HOH INDIAN TRIBE; LUMMI INDIAN
NATION; QUILEUTE INDIAN TRIBE;
QUINAULT INDIAN NATION;
STILLAGUAMISH TRIBE OF INDIANS;
SAUK-SUIATTLE INDIAN TRIBE,
         Real-Parties-in-Interest.



      Appeal from the United States District Court
         for the Western District of Washington
      Ricardo S. Martinez, District Judge, Presiding
2        MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES

            Argued and Submitted October 22, 2019
                     Seattle, Washington

                    Filed December 18, 2019

    Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
          Judges, and Jed S. Rakoff, * District Judge.

                    Opinion by Judge Rakoff;
                     Dissent by Judge Ikuta


                          SUMMARY **


               Tribal Matters / Fishing Rights

    The panel affirmed the district court’s dismissal due to
lack of jurisdiction of a subproceeding brought by
Muckleshoot Indian Tribe concerning usual and accustomed
fishing grounds and stations (“U&As”) in western
Washington established under the “Stevens Treaties.”

    In United States v. Washington (Final Decision #1), 384
F. Supp. 312, 330 (W.D. Wash. 1974), aff’d and remanded,
520 F.2d 676 (9th Cir. 1975), Judge Boldt made detailed
findings of facts and conclusions of law defining the U&As,
and issued a permanent injunction that retained jurisdiction
in implementing the decision’s decree.

     *
     The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
     MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES               3

    In Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d
1355, 1359–60 (9th Cir. 1998) (“Muckleshoot 1”), the Court
held that where a tribe’s U&As have been “specifically
determined” in Final Decision #1, continuing jurisdiction
under the permanent injunction resides only in Paragraph
25(a)(1). In Subproceeding 97-1, this Court affirmed
District Judge Rothstein’s holding that the Muckleshoot’s
saltwater U&As were limited to Elliot Bay. United States v.
Muckleshoot Indian Tribe, 235 F.3d 429, 438 (9th Cir.
2000). In Subproceeding 17-2 at issue in this case, the
Muckleshoot sought under Paragraph 25(a)(6) to expand
their U&As to certain areas of Puget Sound beyond Elliot
Bay.

    The panel noted that in order for a tribe to bring an action
under Paragraph 25(a)(6), the U&A at issue must have not
been “specifically determined” by Final Decision #1. As a
threshold issue, the panel held that the district court properly
held that Muckleshoot’s saltwater U&As in Puget Sound had
already been “specifically determined” in their entirety by
Judge Boldt, and accordingly, there was no continuing
jurisdiction under Paragraph 25(a)(6) to entertain the present
subproceeding. The panel did not reach the other issues
raised on appeal.

    Dissenting, Judge Ikuta stated that the majority’s opinion
frustrated Judge Boldt’s rulings in Final Decision #1 that his
specific determinations were not comprehensive, and that
tribes could invoke the court’s continuing jurisdiction to
determine additional U&A fishing locations.
4    MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES

                      COUNSEL

David R. West (argued), Donald B. Scaramastra, and
Margaret A. Duncan, Garvey Schubert Barer, P.C., Seattle,
Washington; Richard Reich, Robert L. Otsea, Jr., Laura
Weeks, and Ann E. Tweedy, Office of the Tribal Attorney,
Muckleshoot Indian Tribe, Auburn, Washington; for
Plaintiff-Appellant.

Mason D. Morisset, Morisset, Schlosser, Jozwiak, and
Somerville, Seattle, Washington, for Respondent-Appellee
Tulalip Tribes.

John W. Ogan (argued), Law Office of John W. Ogan,
Sisters, Oregon; James Rittenhouse Bellis, Office of
Suquamish Tribal Attorney, Suquamish, Washington; for
Respondent-Appellee Suquamish Indian Tribe.

Samuel J. Stiltner and John Howard Bell, Law Office,
Puyallup Tribe, Tacoma, Washington, for Respondent-
Appellee Puyallup Tribe.

Sharon Haensly, David Babcock, and Kevin Lyon, Squaxin
Island Legal Department, Shelton, Washington, for
Respondent-Appellee Squaxin Island Tribe.

Jay J. Manning and Meghan E. Gavin, Cascadia Law Group
PLLC, Olympia, Washington, for Respondent-Appellee
Nisqually Indian Tribe.

James M. Jannetta and Emily Haley, Office of the Tribal
Attorney, La Conner, Washington, for Respondent-Appellee
Swinomish Indian Tribal Community.
     MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES         5

Michael S. Grossmann and Joseph V. Panesko, Assistant
Attorneys General; Office of the Washington Attorney
General, Olympia, Washington; for Respondent-Appellee
State of Washington.

Lauren Rasmussen (argued), Law Offices of Lauren
Rasmussen, Seattle, Washington, for Respondents-
Appellees Jamestown S’Klallam Tribe and Port Gamble
S’Klallam Tribe.

Earle David Lees, III, Skokomish Indian Tribe, Shelton,
Washington, for Respondent-Appellee Skokomish Indian
Tribe.

Craig J. Dorsay and Lea Ann Easton, Dorsay & Easton LLP,
Portland, Oregon, for Real-Party-in-Interest Hoh Indian
Tribe.

Mary Michelle Neil, Lummi Indian Nation, Office of the
Reservation Attorney, Bellingham, Washington, for Real-
Party-in-Interest Lummi Indian Nation.

Lauren J. King, Attorney, Foster Pepper PLLC, Seattle,
Washington, for Real-Party-in-Interest Quileute Indian
Tribe.

Eric J. Nielsen, Counsel, Nielsen, Broman & Koch PLLC,
Seattle, Washington, for Real-Party-in-Interest Quinault
Indian Nation.

Scott Mannakee, Stillaguamish Tribe of Indians, Arlington,
Washington; Rob Roy Smith, Kilpatrick Townsend &
Stockton, LLP, Seattle, Washington; for Real-Party-in-
Interest Stillaguamish Tribe of Indians.
6    MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES

Jack Warren Fiander and Elmer Jerome Ward, Sauk-Suiattle
Indian Tribe, Office of Legal Counsel, Darrington,
Washington, for Real-Party-in-Interest Sauk-Suiattle Indian
Tribe.


                         OPINION

RAKOFF, District Judge:

    In the 1850s, Isaac Stevens, then-Governor and
Superintendent of Indian Affairs of the Washington
Territory, executed eleven treaties with Indian tribes in an
area that later became part of the State of Washington. See
Washington v. Washington State Commercial Passenger
Fishing Vessel Ass’n, 443 U.S. 658, 666 (1979); United
States v. Washington, 384 F. Supp. 312, 330 (W.D. Wash.
1974) (“Final Decision # I”), aff’d and remanded, 520 F.2d
676 (9th Cir. 1975). Under these so-called “Stevens
Treaties,” each tribe ceded its lands in exchange for securing
a small reservation and the right to take fish “in common
with” others at its “usual and accustomed” fishing grounds
and stations (“U&As”).

    In September 1970, the United States, on its own behalf
and as trustee for several Western Washington Indian tribes
(later joined by additional Indian tribes as intervenor
plaintiffs), filed a complaint against the State of Washington
to enforce these treaty fishing rights. See Final Decision # I,
384 F. Supp. at 327–28. In February 1974, after the parties
had spent more than three years in exhaustive discovery in
the fields of anthropology, history, biology, fishery
management, and other areas of expertise, followed by a
three-week trial before the Hon. George H. Boldt of the U.S.
District Court for the Western District of Washington, Judge
     MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES             7

Boldt issued Final Decision # I, which encompassed 253
detailed findings of facts and 48 conclusions of law.

    Final Decision # I defined U&As as “every fishing
location where members of a tribe customarily fished from
time to time at and before treaty times, however distant from
the then usual habitat of the tribe, and whether or not other
tribes then also fished in the same waters[.]” Id. at 332. As
to the Muckleshoot Indian Tribe, Final Decision # I stated
as follows:

       76. Prior to and during treaty times, the
       Indian ancestors of the present day
       Muckleshoot Indians had usual and
       accustomed fishing places primarily at
       locations on the upper Puyallup, the Carbon,
       Stuck, White, Green, Cedar and Black
       Rivers, the tributaries to these rivers
       (including Soos Creek, Burns Creek and
       Newaukum Creek) and Lake Washington,
       and secondarily in the saltwater of Puget
       Sound.

Id. at 367 (citations omitted).

    In rendering his historic decision, Judge Boldt clarified
that, although Final Decision # I tried to resolve “as many as
possible of the divisive problems of treaty right fishing,” it
“set forth information regarding . . . some, but by no means
all, of [plaintiff tribes’] principal usual and accustomed
fishing places.” Id. at 330, 333. This was because it was
“impossible to compile a complete inventory of any tribe’s
usual and accustomed grounds and stations” at that time. Id.
at 353; see also id. at 402.
8       MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES

    Anticipating that because of these gaps the decree might
face future challenges, Final Decision # I included a
permanent injunction that retained jurisdiction in
implementing the decree. See id. at 408. Specifically,
Paragraph 25 of the permanent injunction identifies various
kinds of “subproceedings” that a party may bring to seek
further rulings within United States v. Washington. See id. at
419. The case now before the Court, Subproceeding 17-2, is
one such subproceeding. Specifically, the Muckleshoot seek
to expand their U&As to certain areas of Puget Sound
beyond Elliott Bay.

    As relevant here, Paragraph 25(a)(1) of the permanent
injunction 1 provides for jurisdiction over determinations of
“whether or not the actions, intended or effected by any party
. . . are in conformity with Final Decision #I or this
injunction.” Id. By contrast, Paragraph 25(a)(6) of the
permanent injunction provides the district court with
jurisdiction over a tribe’s request to decide “the location of
any of a tribe’s usual and accustomed fishing grounds not
specifically determined by Final Decision #I.” Id.

    In 1998, this Court issued an opinion in Muckleshoot
Tribe v. Lummi Indian Tribe, holding that, where a tribe’s
U&As have been “specifically determined” in Final
Decision # I, continuing jurisdiction under the permanent
injunction resides only in Paragraph 25(a)(1), not Paragraph
25(a)(6). 141 F.3d 1355, 1359–60 (9th Cir. 1998)
(“Muckleshoot I”). This Court further held that in such
circumstances, the district court’s task was to “give effect to

    1
      In 1993, without any changes to each provision’s substantive
content, original Paragraph 25(a) was redenominated as current
Paragraph 25(a)(1), and original Paragraph 25(f) was redenominated as
current Paragraph 25(a)(6).
        MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES                 9

the intention of the issuing court [(i.e., Judge Boldt)]” by
reviewing “the entire record before the issuing court and the
findings of fact . . . in determining what was decided.” Id. at
1359 (citations omitted). By contrast, the district court was
forbidden to consider new evidence in making supplemental
findings that “alter, amend or enlarge upon the description
in the decree.” Id. at 1360.

    In 1997, the Puyallup Tribe, the Suquamish Tribe, and
the Swinomish Tribe brought Subproceeding 97-1, seeking
a determination that the Muckleshoot had no saltwater
U&As outside the Elliott Bay part of Puget Sound. See
United States v. Washington, 19 F. Supp. 3d 1252, 1272
(W.D. Wash. 1999) (“Subproceeding 97-1”). The main issue
in Subproceeding 97-1, as framed by the district court, was
“whether Judge Boldt intended to designate a saltwater
fishery for the Muckleshoot and, if so, what areas he
intended ‘secondarily in the saltwater of Puget Sound’ to
encompass.” Id. at 1305. After extensive proceedings,
District Judge Barbara J. Rothstein held that the
Muckleshoot’s saltwater U&As were limited to Elliott Bay.
See id. at 1311. This Court affirmed the district court’s
decision. See United States v. Muckleshoot Indian Tribe, 235
F.3d 429, 438 (9th Cir. 2000).

    The Muckleshoot brought the instant subproceeding in
the district court (Hon. Ricardo S. Martinez) on July 13,
2017. Relying on Paragraph 25(a)(6), the Muckleshoot seek
to obtain additional U&As in the saltwater of Puget Sound
beyond Elliott Bay. 2


    2
      To be more precise, the Muckleshoot seek: “All of the marine
waters of Puget Sound to and including the waters in the vicinity of
Gedney (aka Hat) Island and the southern end of Whidbey Island in the
10       MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES

    The Jamestown S’Klallam Tribe, the Port Gamble
S’Klallam Tribe, the Swinomish Tribe, and the Tulalip Tribe
jointly filed a motion to dismiss the instant subproceeding
under Fed. R. Civ. P. 12(b)(1), arguing that the district court
lacked subject matter jurisdiction because the scope of the
Muckleshoot’s U&As in the saltwater of Puget Sound had
been specifically determined by Judge Boldt. The
Suquamish Tribe, joined separately by the Squaxin Island
Tribe and the Puyallup Tribe, filed a motion to dismiss under
Fed. R. Civ. P. 12(b)(1) and 12(b)(6). 3

    The district court granted the motions to dismiss for two
reasons. First, “Judge Boldt [had] specifically determined
Muckleshoot U&A in [Final Decision # I], and therefore
there [was] no continuing jurisdiction under [Paragraph
25(a)(6)].” Second, the Muckleshoot tribe was “collaterally
estopped from relitigating its previously-adjudicated U&A
in [Subproceeding 97-1].” This appeal followed.

    We have jurisdiction pursuant to 28 U.S.C. § 1291.
Ordinarily, “[w]e review a dismissal for lack of subject
matter jurisdiction de novo.” Prather v. AT&T, Inc., 847
F.3d 1097, 1102 (9th Cir. 2017), cert. denied, 137 S. Ct.
2309 (2017). In the present case, the district court found lack
of subject matter jurisdiction based on its interpretation of a
prior judicial decree. In such case, “[t]he district court’s
interpretation of a judicial decree is also reviewed de novo,

north, to and including the marine waters around Anderson, Fox and
McNeil Islands in the south, and all of the marine waters of Puget Sound
between those areas, but excluding Colvos Passage and marine waters
within the boundaries of any Indian Reservation.”
     3
       Relatedly, the Sauk-Suiattle Indian Tribe filed a motion for leave
to file a brief as an interested party. That motion is GRANTED, and the
Court has considered the accompanying brief.
        MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES                  11

although this court typically gives deference to the district
court’s interpretation based on the court’s extensive
oversight of the decree from the commencement of the
litigation to the current appeal.” United States v. Walker
River Irrigation Dist., 890 F.3d 1161, 1169 (9th Cir. 2018)
(internal citation, quotations, and alterations omitted).

                             Discussion

    In order for a tribe to bring an action under Paragraph
25(a)(6), the U&A at issue must not have been “specifically
determined” by Final Decision # I. See Final Decision # I,
384 F. Supp. at 419; Muckleshoot I, 141 F.3d at 1359–60.
Therefore, the threshold issue in this appeal is whether the
district court erred in holding that the Muckleshoot’s
saltwater U&As in Puget Sound had already been
“specifically determined” by Judge Boldt. Because we agree
with the district court that Judge Boldt had determined the
entirety of the Muckleshoot’s saltwater U&As, we do not
reach other issues raised on appeal. 4

    At the motion to dismiss stage of Subproceeding 97-1,
Judge Rothstein held that there was no jurisdictional basis to
entertain the three tribes’ claims regarding Muckleshoot’s
U&As in Puget Sound under Paragraph 25(a)(6):

         Here, as in [Muckleshoot I], Judge Boldt has
         already made a finding of fact determining
         the location of Muckleshoot’s U & A.
         Although his determination may have turned

    4
       Other issues raised on appeal include whether the district court
erred in holding that Subproceeding 97-1 collaterally estopped
Muckleshoot from raising its claim to expand its U&As; and whether
judicial estoppel prevents Muckleshoot from arguing here that its U&As
were not specifically determined in that earlier subproceeding.
12   MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES

       out to be ambiguous, he did make a specific
       description. . . . Issuing a supplemental
       finding under [Paragraph 25(a)(6)] defining
       the scope of Muckleshoot’s U & A in Puget
       Sound would “alter, amend or enlarge upon”
       Judge Boldt’s description, contrary to the
       Ninth Circuit’s holding in [Muckleshoot I].

Subproceeding 97-1, 19 F. Supp. 3d at 1275–76. Later, at the
summary judgment stage of Subproceeding 97-1, Judge
Rothstein, after her extensive review of the record in front of
Judge Boldt, found as follows:

       It is clear from the documents Judge Boldt
       specifically cited to that the predecessors of
       the Muckleshoot were a primarily upriver
       people who may have, from time to time,
       descended to Elliott Bay to fish and collect
       shellfish there. . . . Based on this evidence,
       the court concludes that Judge Boldt intended
       to include [Elliott Bay] in the Muckleshoot U
       & A. . . . The court finds, however, that there
       is no evidence in the record before Judge
       Boldt, nor is it persuaded by extra-record
       evidence, that Judge Boldt intended to
       describe a saltwater U&A any larger than the
       open waters and shores of Elliott Bay.

Subproceeding 97-1, 19 F. Supp. 3d at 1310–11. These
findings were affirmed by this Court, which stated, inter
alia, that the “[documents before Judge Boldt] indicate that
the Muckleshoot’s ancestors were almost entirely an upriver
people who primarily relied on freshwater fishing for their
livelihoods. Insofar as they conducted saltwater fishing, the
referenced documents contain no evidence indicating that
     MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES             13

such fishing occurred with regularity anywhere beyond
Elliott Bay.” United States v. Muckleshoot Indian Tribe, 235
F.3d 429, 434 (9th Cir. 2000).

    This was, or should have been, the end of the matter, as
the district court here found. But the dissent suggests that
Judge Rothstein somehow left a door open for the
Muckleshoot to argue that they have fishing rights in Puget
Sound beyond Elliott Bay because the matter was not finally
determined by Judge Boldt. This misapprehends what
occurred in the prior rulings. When Judge Rothstein was
called upon to determine what Judge Boldt meant when he
ruled that the Muckleshoot had usual and accustomed fishing
places “secondarily in the saltwater of Puget Sound,” she
determined, as quoted above, that he had necessarily
considered whether the Muckleshoot had fishing places in
various parts of Puget Sound but that he had in the end
concluded that such places were limited to Elliott Bay. In
other words, the most reasonable reading of Judge
Rothstein’s findings, as quoted above, is that Judge Boldt, in
referring to the Muckleshoot’s fishing rights in Puget Sound,
determined in effect that the only part of Puget Sound in
which the Muckleshoot had any usual and accustomed
fishing was “the open waters and shores of Elliott Bay.” It
was precisely for this reason that Judge Rothstein concluded
that “[i]ssuing a supplemental finding under [Paragraph
25(a)(6)] defining the scope of Muckleshoot’s U & A in
Puget Sound” would be an impermissible attempt to
contradict Judge Boldt’s determination. Subproceeding 97-
1, 19 F. Supp. 3d at 1275–76 (emphasis added).

    In short, Subproceeding 97-1, as affirmed by this Court,
definitively determined that the Muckleshoot’s saltwater
fisheries in Puget Sound had been limited by Judge Boldt to
Elliott Bay. Therefore, the district court below did not err in
14    MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES

holding that it lacked jurisdiction under Paragraph 25(a)(6)
to entertain the present subproceeding, and properly
dismissed it.

     AFFIRMED.



IKUTA, Circuit Judge, dissenting:

    In United States v. Washington (Final Decision #I),
Judge Boldt not only painstakingly identified some of the
historical usual and accustomed (U&A) fishing locations for
several Western Washington tribes, but also created a
procedure through which the tribes could bring new
evidence to support their claims to additional U&A fishing
locations. 384 F. Supp. 312 (W.D. Wash. 1974), aff’d and
remanded, 520 F.2d 676 (9th Cir. 1975). Because the
majority thwarts Judge Boldt’s elegant solution to a complex
problem, I dissent.

                              I

    In his effort to resolve “as many as possible of the
divisive problems of treaty right fishing” in Western
Washington, Judge Boldt had difficult decisions to make. Id.
at 330. Because the tribes had treaty rights to fish at “all
usual and accustomed grounds and stations,” he had to figure
out each tribe’s historical U&A fishing areas. Id. at 332. But
Judge Boldt knew that he could not define every U&A
fishing location for every tribe. Compiling a “complete
inventory” would be impossible. Id. at 353. So he made
findings that defined, or “specifically determined,” id. at
419, “some, but by no means all,” of the tribes’ U&A fishing
locations, id. at 333. Given Judge Boldt’s acknowledgment
that it would be impossible to define each tribe’s U&A
     MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES             15

fishing locations conclusively, it is not surprising that Judge
Boldt made no findings that particular locations were not
part of a tribe’s U&A fishing locations.

    After   making       his     findings   (his    “Specific
Determinations”), Judge Boldt issued an injunction to set
forth “the basic obligations of the parties, together with
means for resolving future matters” in order “to guide the
conduct of all parties, plaintiff and defendant.” Id. at 413–
14. Judge Boldt contemplated two types of “future matters.”

    First, Paragraph 25(a)(1) of the Injunction (the
“Clarification Paragraph”) permits tribes to ask the court to
resolve any ambiguity in Judge Boldt’s Specific
Determinations. Id. at 419. Under the Clarification
Paragraph, tribes can invoke the district court’s continuing
jurisdiction to determine “whether or not the actions,
intended or effected by any party (including the party
seeking a determination) are in conformity with Final
Decision #I or this injunction.” Id. By invoking the
Clarification Paragraph, tribes can ask the district court to
“clarify the meaning of terms used” in Final Decision #I so
as to give effect to Judge Boldt’s intent. Muckleshoot Tribe
v. Lummi Indian Tribe, 141 F.3d 1355, 1360 (9th Cir. 1998)
(Muckleshoot I).

     Second, Paragraph 25(a)(6) of the Injunction (the “New
Determinations Paragraph”) provides that the tribes can
invoke the continuing jurisdiction of the court to determine
“the location of any of a tribe’s usual and accustomed fishing
grounds not specifically determined by Final Decision #I.”
384 F. Supp. at 419. Because Judge Boldt understood that
he could not specifically determine all the U&A fishing
locations for every tribe in Final Decision #I itself, he
included this New Determinations Paragraph to allow a tribe
to invoke the court’s jurisdiction to consider further evidence
16   MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES

showing the tribe historically fished at additional locations
not included in the initial Specific Determinations. Id. at
353, 419. If a district court concludes, after a proceeding
under the New Determinations Paragraph, that a specific
location does not qualify as a U&A fishing location for a
tribe, the tribe is barred by issue preclusion from bringing a
second request for a determination as to the same location.
See Janjua v. Neufeld, 933 F.3d 1061, 1065–66 (9th Cir.
2019).

    We have previously explained the significant evidentiary
difference between proceedings under the Clarification
Paragraph and the New Determinations Paragraph. See
Muckleshoot I, 141 F.3d at 1359. When a tribe claims that a
Specific Determination is ambiguous under the Clarification
Paragraph, a court’s only job is to discern Judge Boldt’s
intent. This is because “[w]hen interpreting an ambiguous
prior judgment, the reviewing court should ‘construe a
judgment so as to give effect to the intention of the issuing
court.’” Id. at 1359 (quoting Narramore v. United States,
852 F.2d 485, 490 (9th Cir. 1988)). Because Judge Boldt’s
intent is all that matters in a proceeding under the
Clarification Paragraph, only evidence relevant to that intent
can be considered in such a proceeding. Id. at 1360; United
States v. Washington, 19 F. Supp. 3d 1252, 1272, 1310–11
(W.D. Wash. 1997) (Subproceeding 97-1 or Rothstein
Decision).

    By contrast, when a tribe invokes the New
Determinations Paragraph and argues that it is entitled to
fishing locations that were not included in Judge Boldt’s
Specific Determinations, the tribe can offer any evidence—
new or old—relevant to establishing that the tribe
historically fished in those areas. See Muckleshoot I, 141
     MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES            17

F.3d at 1360. Based on this evidence, the court may
specifically determine additional U&A fishing locations.

                             II

    In this case, the Muckleshoot tribe is bringing a claim
under the New Determinations Paragraph. To understand
the claim, it is necessary to provide some background.

    In Paragraph 76 of Final Decision #I, Judge Boldt made
a Specific Determination regarding the Muckleshoot’s U&A
fishing locations:

       76. Prior to and during treaty times, the
       Indian ancestors of the present day
       Muckleshoot Indians had usual and
       accustomed fishing places primarily at
       locations on the upper Puyallup, the Carbon,
       Stuck, White, Green, Cedar and Black
       Rivers, the tributaries to these rivers
       (including Soos Creek, Burns Creek and
       Newaukum Creek) and Lake Washington,
       and secondarily in the saltwater of Puget
       Sound. Villages and weir sites were often
       located together.

Final Decision #I, 384 F. Supp. at 367 (emphasis added).

    In a proceeding before Judge Rothstein, who had taken
over hearing claims arising under Final Decision #I from
Judge Boldt, the Muckleshoot pointed to the language in
Paragraph 76 providing that the tribe had U&A fishing
locations “secondarily in the saltwater of Puget Sound.” See
Rothstein Decision, 19 F. Supp. 3d at 1272.              The
Muckleshoot contended that this broad language constituted
a Specific Determination that the Muckleshoot’s U&A
18   MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES

fishing locations encompassed all of Puget Sound, including
locations designated as Areas 9, 10, and 11. Id. at 1274.
Three other tribes argued that the phrase “secondarily in the
saltwater of Puget Sound” was ambiguous, and the
Muckleshoot did not “have fishing rights in Areas 10, 11 and
points beyond” in Puget Sound. Id. at 1273–74.

    Because Final Decision #I, on its face, set out a broad
Specific Determination covering all of Puget Sound, the
Muckleshoot tribe had to proceed under the Clarification
Paragraph and could not invoke the New Determinations
Paragraph. See Muckleshoot I, 141 F.3d at 1360. This is
because the New Determinations Paragraph “does not
authorize the court to clarify the meaning of terms used in
[Final Decision #I] or to resolve an ambiguity with
supplemental findings which alter, amend or enlarge upon
the description in the decree.” Id. As both Judge Rothstein
and the Muckleshoot agreed, only the Clarification
Paragraph permitted Judge Rothstein to construe the scope
of the Specific Determination relating to Puget Sound.
Rothstein Decision, 19 F. Supp. 3d at 1273–75.

    Proceeding under the Clarification Paragraph, Judge
Rothstein first determined that the terms “Puget Sound” and
“secondarily” were ambiguous. Id. at 1274. To interpret
Judge Boldt’s intent in using these terms, Judge Rothstein
held that she could consider “evidence before Judge Boldt
when he made his finding,” and evidence “indicative of the
contemporary understanding” of the phrase “secondarily in
the saltwater of Puget Sound.” Id. at 1275. In other words,
she could consider evidence relevant to what “Judge Boldt
intended.” Id. at 1311.

    After an evidentiary hearing, considering only that
evidence, Judge Rothstein determined that Judge Boldt
intended the phrase “secondarily in the saltwater of Puget
     MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES          19

Sound” to mean “Elliott Bay.” Id. at 1275. In other words,
under Judge Rothstein’s construction of Final Decision #I,
Paragraph 76 can no longer be read as stating that “the
Muckleshoot Indians had usual and accustomed fishing
places . . . secondarily in the saltwater of Puget Sound.”
Instead, Paragraph 76 must be read as stating that “the
Muckleshoot Indians had usual and accustomed fishing
places” in Elliott Bay. In her opinion, Judge Rothstein did
not make any finding that areas outside of Elliott Bay were
not part of the Muckleshoot’s U&A fishing locations. This
makes sense, given that Judge Rothstein was merely trying
to discern Judge Boldt’s intent, and Judge Boldt had not
made findings that any locations were not part of a tribe’s
U&A fishing locations.

    In 2018, after Judge Martinez had taken over for Judge
Rothstein, the Muckleshoot asked the district court to
consider its claims to U&A fishing locations outside Elliott
Bay under the New Determinations Paragraph. United
States v. Washington, 2018 WL 1933718, at *5 (W.D. Wash.
April 24, 2018). The Muckleshoot offered new evidence,
not relating to Judge Boldt’s intent, which the Muckleshoot
claimed showed that various areas within Puget Sound were
historically Muckleshoot U&A fishing locations.

    Judge Martinez rejected the Muckleshoot’s request for a
determination under the New Determinations Paragraph. He
reasoned that because Final Decision #I stated that the
Muckleshoot had U&A fishing locations “secondarily in the
saltwater of Puget Sound,” the court had no authority to
“alter, amend or enlarge” that Specific Determination under
the New Determinations Paragraph. Id. at *6–7. Judge
Martinez therefore dismissed the case for lack of
jurisdiction. Id. at 7.
20   MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES

                             III

    In reaching this conclusion, Judge Martinez erred, and
the majority errs in affirming it.

    Judge Martinez was correct that the New Determinations
Paragraph does not authorize a court to clarify or expand a
Specific Determination, even if that determination is broad
and ambiguous. Muckleshoot I, 141 F.3d at 1360. But after
Judge Rothstein’s decision, Final Decision #I specifically
determined only that Elliott Bay is a U&A fishing location
for the Muckleshoot; there was no longer a Specific
Determination addressing Puget Sound as a whole.
Therefore, the Muckleshoot were entitled to request a new
Specific Determination under the New Determinations
Paragraph relating to areas in Puget Sound outside of Elliott
Bay.

    By rejecting the Muckleshoot’s request to consider this
issue under the New Determinations Paragraph, Judge
Martinez’s decision was both unfair to the Muckleshoot tribe
and contrary to Final Decision #I. It is manifestly unfair for
a court to rule that the Muckleshoot tribe has no U&A
fishing locations outside Elliott Bay without considering all
of the tribe’s evidence. While Judge Rothstein considered
only evidence of Judge Boldt’s intent in her proceeding
under the Clarification Paragraph, the Muckleshoot tribe
claims it has additional historical evidence showing it had
U&A fishing locations outside Elliott Bay in Puget Sound.
Such evidence is admissible in a hearing under the New
Determinations Paragraph. By denying the Muckleshoot’s
request for such a hearing, Judge Martinez effectively
determined that the tribe did not have any additional U&A
fishing locations in Puget Sound without reviewing all the
admissible evidence. This is contrary to Final Decision #I,
which expressly allows tribes to request additional
     MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES           21

determinations regarding their U&A fishing locations under
the New Determinations Paragraph.

    Muckleshoot I is not to the contrary, because it did not
address what happens after a Clarification Paragraph
proceeding alters a Specific Determination. Muckleshoot I
involved a situation similar to the proceeding before Judge
Rothstein. In Muckleshoot I, the district court considered a
Specific Determination stating that a tribe had a U&A
fishing location “from the Fraser River south to the present
environs of Seattle.” 141 F.3d at 1359. Various tribes
disputed the meaning of “the present environs of Seattle.”
Id. We held that because Judge Boldt had made a broad
Specific Determination, the district court had to proceed
under the Clarification Paragraph and determine “what
Judge Boldt meant in precise geographic terms by his use of
the phrase ‘the present environs of Seattle.’” Id. at 1360.
We also held that the district court erred in finding (under
the New Determinations Paragraph) that the phrase “the
present environs of Seattle” described an area extending no
farther south than Mukilteo, because a court cannot use that
paragraph to clarify a Specific Determination.            Id.
Moreover, we held it would be improper for the district court
to make any new determination, given that the court had
“failed to allow all parties to present evidence” regarding
that issue. Id. We remanded the case to allow the court to
proceed under the Clarification Paragraph to determine what
Judge Boldt meant when he used the phrase “the present
environs of Seattle.” Id.

    We did not, however, address what would happen after
the court interpreted “the present environs of Seattle.” And
based on the logic of Muckleshoot I, if the district court on
remand interpreted Judge Boldt’s phrase “the present
environs of Seattle” narrowly (for example, to mean “a
22   MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES

location no farther south than present-day Mukilteo,” id. at
1359), nothing in Muckleshoot I would preclude the tribe
from invoking the New Determinations Paragraph and
offering evidence that other areas in the broader “present
environs of Seattle” were U&A fishing locations of that
tribe.

    The same logic applies here. Therefore, Judge Martinez
erred in refusing to allow the Muckleshoot to invoke the
New Determinations Paragraph and in refusing to consider
the tribe’s new evidence as to locations within Puget Sound
that were not “specifically determined” in Final Decision #I.
See 384 F. Supp. at 419.

    In holding otherwise, the majority fails to grapple with
the unprecedented procedural posture of this case, which
arose after a proceeding under the Clarification Paragraph.
Instead, its analysis of the Muckleshoot’s argument rests on
two errors.

    First, the majority fails to recognize the limited scope of
decisions made in a proceeding under the Clarification
Paragraph. The majority mischaracterizes Judge Rothstein’s
decision as holding that Judge Boldt made a Specific
Determination excluding all areas in Puget Sound except for
Elliott Bay from the Muckleshoot’s U&A fishing locations.
Maj. at 13. But Judge Rothstein did not, and could not, make
such a finding. Under the Clarification Paragraph, Judge
Rothstein could consider only Judge Boldt’s intent in
making Specific Determinations. And Judge Rothstein’s
ruling, quoted by the majority, speaks only of Judge Boldt’s
intent to include, not exclude, particular locations. See Maj.
at 12 (“Based on this evidence, the court concludes that
Judge Boldt intended to include [Elliott Bay] in the
Muckleshoot U & A. . . . The court finds, however, that there
is no evidence in the record before Judge Boldt, nor is it
     MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES            23

persuaded by extra-record evidence, that Judge Boldt
intended to describe a saltwater U&A any larger than the
open waters and shores of Elliott Bay.”) (quoting Rothstein
Decision, 19 F. Supp. 3d at 1310-11) (emphasis added).
Judge Boldt’s intent to include only Elliott Bay as a U&A
location, based on the evidence then before him, does not
raise the inference that Judge Boldt intended to exclude other
areas of Puget Sound from consideration under the New
Determinations Paragraph. Any such finding would have
been directly contrary to Final Decision #I, given that Judge
Boldt excluded no locations from any tribe’s U&A and
expressly laid out a procedure for tribes to return to court
with additional evidence. For the same reason, the
majority’s statement that “Judge Boldt had determined the
entirety of the Muckleshoot’s saltwater U&As,” Maj. at 11,
is directly contrary to Final Decision #I and Judge
Rothstein’s decision.

    Second, the majority confuses law that applies before a
proceeding under the Clarification Paragraph with law that
applies after. In particular, the majority errs in relying on
Judge Rothstein’s statement—made before she held an
evidentiary hearing under the Clarification Paragraph—that
“[i]ssuing a supplemental finding under [the New
Determinations Paragraph] defining the scope of
Muckleshoot’s U&A in Puget Sound would ‘alter, amend, or
enlarge upon’ Judge Boldt’s description,” contrary to
Muckleshoot I. Maj. at 12; see 19 F. Supp. 3d at 1275–76.
This statement is merely a straightforward recitation of
Muckleshoot I’s holding, made before Judge Rothstein heard
evidence clarifying Judge Boldt’s intent. As explained
above, that holding does not speak to what happens after a
proceeding under the Clarification Paragraph, and neither
did Judge Rothstein.
24   MUCKLESHOOT INDIAN TRIBE V. TULALIP TRIBES

                            ***

    In sum, the majority fails to recognize the Muckleshoot’s
plight. Because Judge Boldt made a Specific Determination
using language that encompassed the entire Puget Sound, the
tribe could not make arguments or present new evidence to
Judge Rothstein about their historic entitlement to locations
within Puget Sound; they were limited to evidence regarding
Judge Boldt’s intent. Now that Judge Rothstein has
determined that Judge Boldt intended to make a Specific
Determination that the tribe had a U&A fishing location in
Elliott Bay, the majority unfairly holds that the Muckleshoot
cannot present any new evidence regarding their historical
use of other locations in Puget Sound. This frustrates Judge
Boldt’s rulings in Final Decision #I that his Specific
Determinations were not comprehensive, and that tribes
could invoke the court’s continuing jurisdiction to determine
additional U&A fishing locations. Because Judge Boldt
could not have intended this result, I dissent.
