                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 12-35936
                    Plaintiff,
                                         D.C. Nos.
              and                   2:11-sp-00002-RSM
                                    2:70-cv-09213-RSM
LOWER ELWHA KLALLAM
INDIAN TRIBE; JAMESTOWN
S’KLALLAM TRIBE; PORT                    OPINION
GAMBLE S’KLALLAM TRIBE,
          Petitioners-Appellees,

               v.

LUMMI NATION,
        Respondent-Appellant,

              and

STATE OF WASHINGTON,
                  Defendant.


     Appeal from the United States District Court
        for the Western District of Washington
     Ricardo S. Martinez, District Judge, Presiding

                Argued and Submitted
         April 11, 2014—Seattle, Washington
2 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

                      Filed August 19, 2014

  Before: Michael Daly Hawkins, Johnnie B. Rawlinson,
           and Carlos T. Bea, Circuit Judges.

                     Opinion by Judge Bea;
                   Dissent by Judge Rawlinson


                           SUMMARY*


                          Fishing Rights

    The panel reversed the district court’s summary judgment
entered in favor of the Klallam Tribe in a case involving a
fishing territory dispute between two sets of Indian Tribes,
brought pursuant to the continuing jurisdiction of the 1974
“Boldt Decree” issued by the U.S. District Court for the
Western District of Washington.

    The panel held that the issue of whether the waters
immediately to the west of northern Whidbey Island were
part of the Lummi Tribe’s usual and accustomed fishing
grounds had not yet been determined. The panel held,
therefore, that the district court erred in concluding that the
issue was controlled by law of the case. The panel remanded
to the district court for further proceedings.

    Judge Rawlinson dissented because she would hold that
the district court properly applied the law of the case doctrine

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
  LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 3

where the fishing rights issue was addressed in the prior
opinion United States v. Lummi Indian Tribe, 235 F.3d 443
(9th Cir. 2000).


                       COUNSEL

Sam D. Hough and Stephen Hayes Suagee (argued), Office of
General Counsel, Lower Elwha Klallam Tribe, Port Angeles,
Washington, for Petitioner-Appellee Lower Elwha Klallam
Indian Tribe.

Lauren Patricia Rasmussen (argued), Law Offices of Lauren
P. Rasmussen, Seattle, Washington, for Petitioner-Appellee
Jamestown S’Klallam Tribe and Port Gamble S’Klallam
Tribe.

Hyland Hunt and Pratik A. Shah (argued), Akin Gump
Strauss Hauer & Feld LLP, Washington, D.C.; Mary Michelle
Neil, Lummi Indian Nation, Office of the Reservation
Attorney, Bellingham, Washington; Daniel Alan Raas, Raas,
Johnsen & Stuen, P.S., Bellingham, Washington, for
Respondent-Appellant.


                        OPINION

BEA, Circuit Judge:

   This appeal involves a fishing territory dispute between
two sets of Indian tribes: the Lower Elwha S’Klallam Tribe,
the Jamestown S’Klallam Tribe, and the Port Gamble
S’Klallam Tribe (“the Klallam”) on the one hand, and the
Lummi Nation Tribe (“the Lummi”) on the other. The appeal
4 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

arises from a proceeding brought by the Klallam pursuant to
the continuing jurisdiction of a 1974 decree issued by the
U.S. District Court for the Western District of Washington
(“Boldt Decree”), and it involves a dispute over the
geographic scope of the Lummi’s “usual and accustomed
fishing grounds” (“U&A”). We must decide if a prior Ninth
Circuit opinion has already decided whether the waters
immediately to the west of northern Whidbey Island are a part
of the Lummi’s U&A such that the question is controlled by
law of the case. We conclude that the question has not yet
been determined and therefore reverse and remand.

            Factual and Procedural Summary

     This case arises from a request for determination brought
by the Klallam in 2011 to determine the fishing rights of the
Lummi under the 1855 Treaty of Point Elliott. The Klallam
initiated this subproceeding for a determination of rights,
declaratory relief, and to prohibit the Lummi from fishing in
certain waters.

    On January 22, 1855, the Lummi entered into the Treaty
of Point Elliott with the United States. 12 Stat. 927 (1855).
This treaty “secured” to the Lummi “[t]he right of taking fish
at usual and accustomed grounds and stations.” Id. at 928.
The “usual and accustomed grounds and stations” is
abbreviated throughout this opinion as “U&A.”

    In 1970 the United States, as trustee for all the treaty
tribes including the Klallam and the Lummi, filed suit in the
Western District of Washington to obtain an interpretation of
the Treaty of Point Elliott and an injunction protecting treaty
fishing rights from interference by Washington State. Both
the Klallam and the Lummi intervened as plaintiffs. In 1974,
   LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 5

Judge Boldt issued extensive findings of fact, conclusions of
law, and a permanent injunction.          United States v.
Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (“Boldt
Decree”).

    The Boldt Decree defined the Treaty of Point Elliott’s
reference to “usual and accustomed grounds and stations” as
meaning “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.

    The Boldt Decree discussed the Lummi in particular. Id.
at 360–62. Judge Boldt found that the Lummi fished using
reef nets “on Orcas Island, San Juan Island, Lummi Island
and Fidalgo Island, and near Point Roberts and Sandy Point.”
Id. at 360. In addition, Judge Boldt found that the Lummi
“trolled the waters of the San Juan Islands for various species
of salmon.” Id. Moreover, “[i]n addition to the reef net
locations listed above, the [U&A] of the Lummi Indians at
treaty times included the marine areas of Northern Puget
Sound from the Fraser River south to the present environs of
Seattle[.]” Id. at 360.

    Judge Boldt also reserved the “continuing jurisdiction” to
hear future subproceedings regarding “the location of any of
a tribe’s [U&A] not specifically determined by” the Boldt
Decree. Id. at 419.

1. Subproceeding 89-2

    On March 3, 1989, in response to the Lummi’s continued
fishing of certain disputed waters, the Klallam invoked this
6 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

continuing jurisdiction of the Western District of Washington
to initiate Subproceeding 89-2. In this Subproceeding, the
Klallam filed a request for determination that “the [U&A] of
the Lummi Tribe does not include the Strait of Juan de Fuca,
Admiralty Inlet and/or the mouth of Hood Canal.”

    On February 15, 1990, Judge Coyle of the Western
District of Washington granted summary judgment to the
Klallam. (“Coyle Decision”). Judge Coyle, after examining
the Boldt Decree and the evidence on which it was based,
found that “the Lummis’ [U&A] were not intended to include
the Strait of Juan de Fuca. The court is further persuaded that
the mouth of the Hood Canal would not be an area which
Judge Boldt would have intended to include in the Lummis’
[U&A].” Further, Judge Coyle concluded that “Judge Boldt
did not intend Admiralty Inlet to be part of the Lummis’
[U&A].”

    Judge Coyle, however, did not enter final judgment.
United States v. Lummi Indian Tribe, 235 F.3d 443, 447–48
(9th Cir. 2000). The Lummi filed a cross-request for
determination, and both parties continued to litigate. Id. The
Lummi’s cross-request sought determination that:

       the [U&A] of the Lummi Indian tribe include
       the waters of the Strait of Juan de Fuca east
       from the Hoko River to the mouth of the
       Puget Sound, the waters west of Whidbey
       Island, Admiralty Inlet, the waters south of
       Whidbey Island to the present environs of
       Seattle, and the waters of Hood Canal south
       from Admiralty Inlet to a line drawn from
       Termination Point due East across Hood
       Canal.
   LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 7

(emphasis added). The Lummi filed a motion to dismiss and
a motion for summary judgment; the Klallam filed a cross-
motion to dismiss.

    On September 4, 1998, Judge Rothstein, to whom the
subproceeding had been reassigned, denied the Lummi’s
motions and granted the Klallam’s cross-motion to dismiss.
(“Rothstein Decision”). She held that “the court can discern
no difference between” the area covered by the Klallam’s
request for determination before Judge Coyle (i.e. the Strait
of Juan de Fuca, Hood Canal, and the Admiralty Inlet) and
the Lummi’s cross-request for determination before her
(which included “the waters west of Whidbey Island).”
Although “[t]he Lummi’s request is worded differently from
the [Klallam’s] original request[,] . . . [it] covers essentially
the same areas.” Judge Rothstein also held that, even though
Judge Coyle did not enter final judgment, the Coyle Decision
was law of the case. Therefore, she adopted the Coyle
Decision’s finding that “Judge Boldt did not intend to include
the Strait of Juan de Fuca, Admiralty Inlet or the mouth of the
Hood Canal in the Lummi” U&A. Judge Rothstein
accordingly denied the Lummi’s cross-request for
determination and granted the Klallam’s cross-motion to
dismiss.

    The Lummi appealed Judge Rothstein’s order to the Ninth
Circuit. Lummi Indian Tribe, 235 F.3d at 445. The panel
held, first, that the Coyle Decision was not final because
Judge Coyle never entered final judgment. Id. at 448–49.
Because it was not final, the panel continued, the Coyle
Decision merged into the Rothstein Decision. Id. at 449.
Therefore, the panel concluded, both the Coyle Decision and
the Rothstein Decision were before the panel in the appeal.
Id.
8 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

   As the panel framed the issue:

       The question before Judge Coyle was whether
       the Lummi’s [U&A], as expressed in Finding
       of Fact 46 of Decision I [i.e. of the Boldt
       Decree]—“the marine areas of Northern Puget
       Sound from the Fraser River south to the
       present environs of Seattle”—included the
       disputed areas [i.e. the Strait of Juan de Fuca,
       Hood Canal, and the Admiralty Inlet]. The
       phrase used by Judge Boldt is ambiguous
       because it does not delineate the western
       boundary of the Lummi’s [U&A].

Id. The panel analyzed the evidence that was before Judge
Boldt and concluded that Judge Boldt had not intended to
include either the Strait of Juan de Fuca or the Hood Canal in
the Lummi’s U&A, because Judge Boldt commonly
distinguished between the Puget Sound, where the Lummi
fished, and the Strait of Juan de Fuca and Hood Canal, where
other tribes fished. Id. at 450–52. The panel held that “It is
clear that Judge Boldt viewed Puget Sound and the Strait of
Juan de Fuca as two distinct regions, with the Strait lying to
the west of the Sound.” Id. at 451–52. The panel also
concluded that Judge Boldt did intend for the Admiralty Inlet,
i.e. “[t]he waters to the west of Whidbey Island, separating
that island from the Olympic Peninsula[,]” to be included in
the Lummi’s U&A, because, “[g]eographically,” the
Admiralty Inlet

       would likely be a passage through which the
       Lummi would have traveled from the San
       Juan Islands in the north to the “present
       environs of Seattle.” If one starts at the
   LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 9

       mouth of the Fraser River (a Lummi [U&A],
       see Findings of Fact 45 & 46) and travels past
       Orcas and San Juan Islands (also Lummi
       [U&A], see Finding of Fact 45), it is natural
       to proceed through Admiralty Inlet to reach
       the “environs of Seattle.”

Id. at 452 (quoting the Boldt Decree, 384 F. Supp. at 360).
The panel thus affirmed in part and reversed in part. Id. at
453.

    After Lummi Indian Tribe was decided, the Lummi
Natural Resources Commission, a tribal body, interpreted the
decision as including in the Lummi U&A “Haro Strait and
Admiralty Inlet and the waters between the two.” In April,
2009, the Klallam moved for the district court in
Subproceeding 89-2 to hold the Lummi in contempt for
violating the court orders regarding the extent of the Lummi’s
U&A. The Lummi moved to dismiss, arguing that
Subproceeding 89-2 was closed, and the issue should be
addressed in a new subproceeding. The district court, Judge
Martinez, granted the Lummi’s motion to dismiss and denied
the Klallam’s motion without prejudice so it could be
renewed as a new subproceeding.

2. Subproceeding 11-02

    On November 4, 2011, the Klallam initiated
Subproceeding 11-02 by filing a request for determination
that the Lummi’s U&A do not include “the eastern portion of
the Strait of Juan de Fuca or the waters west of Whidbey
Island (excepting Admiralty Inlet).” In particular, the
Klallam defined the “case area” at dispute as follows:
10 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

        Lummi is impermissibly fishing i[n] the
        marine waters northeasterly of a line running
        from Trial island near Victoria, British
        Columbia, to Point Wilson on the westerly
        opening of Admiralty Inlet, bounded on the
        east by Admiralty Inlet and Whidbey Island,
        and bounded on the north by Rosaria Strait,
        the San Juan Islands, and Haro Strait.

The Klallam then moved for summary judgment.

     On October 11, 2012, Judge Martinez granted summary
judgment to the Klallam. He concluded that “[t]he law of the
case holds that the Lummi U&A does not include the Strait
of Juan de Fuca or the waters west of Whidbey Island that
were named in the Lummi Cross-request for determination.
That issue has been finally determined and may not be re-
litigated.” The district court came to this conclusion because
the Rothstein decision determined that there was no
difference between “the Strait of Juan de Fuca, Hood Canal,
and the Admiralty Inlet” and a list of locations that included
“the waters west of Whidbey Island.” The district court also
quoted extensively from a report on traditional U&A of
Indian tribes, including the Lummi, by Dr. Lane, on which
Judge Boldt had relied in making his findings of facts. This
report stated that “Lummi fishermen were accustomed, at
least in historic times, and probably earlier, to visit fisheries
as distant as the Fraser River in the north and Puget Sound in
the south.” The district court found that this statement would
not compel the conclusion that the waters west of northern
Whidbey Island should be included in the Lummi U&A
because “the Lummi have pointed to no facts before Judge
Boldt which would support the conclusion that he intended to
include all the marine waters in between.”
   LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 11

    The Lummi moved for reconsideration on the ground that
the district court’s decision was overbroad because it
interpreted the Lummi’s U&A as not including waters off the
southern coast of the San Juan Islands. The district court
denied the motion, but did clarify that “the Lummi U&A
should include nearshore waters immediately to the south of
San Juan Island and Lopez Island.” The Lummi appealed
both the district court’s original decision and its denial of
their motion for reconsideration.

                    Standard of Review

    The parties disagree over what standard of review we
should apply in analyzing the district court’s conclusion that
the law of the case holds that the Lummi U&A does not
include the waters west of northern Whidbey Island. The
Klallam argue that the correct standard of review is abuse of
discretion, and that there are only five circumstances under
which a district court abuses its discretion in applying the law
of the case, none of which applies here. See Lummi Indian
Tribe, 235 F.3d at 452–53 (holding that application of the
doctrine of law of the case is “discretionary” and that a
district court abuses its discretion “in applying the law of the
case doctrine only if: (1) the first decision was clearly
erroneous; (2) an intervening change in the law occurred;
(3) the evidence on remand was substantially different;
(4) other changed circumstances exist; or (5) a manifest
injustice would otherwise result”).

     Abuse of discretion, however, is the standard when it is
clear that the law of the case doctrine applies. Here, on the
other hand, the parties dispute whether the doctrine applies at
all, i.e. whether the issue has already “been decided explicitly
or by necessary implication.” Id. at 452. This is a question
12 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

of law and therefore we review de novo this threshold
question of whether the issue is controlled by law of the case
at all.

                          Analysis

    “The law of the case doctrine is a judicial invention
designed to aid in the efficient operation of court affairs.”
Lummi Indian Tribe, 235 F.3d at 452. “Under the doctrine,
a court is generally precluded from reconsidering an issue
previously decided by the same court, or a higher court in the
identical case.” Id. “For the doctrine to apply, the issue in
question must have been decided explicitly or by necessary
implication in the previous disposition.” Id. (internal
quotation marks and brackets omitted) (emphasis added).

    In their request for determination here, the Klallam assert
that “Subproceeding 89-2 [has] determined that the Lummi’s
U&A does not include the eastern portion of the Strait of Juan
de Fuca or the waters west of Whidbey Island (excepting
Admiralty Inlet).” The Klallam state that they “do not seek
to relitigate Lummi’s [U&A] but, rather, seek to demonstrate
that [these] waters . . . have already been found by th[e
district c]ourt and the Ninth Circuit Court of Appeals to be
outside of Lummi’s U&A.” The Lummi acknowledge that it
is clear law of the case that Judge Boldt did not intend to
include the Strait of Juan de Fuca in the Lummi’s U&A. The
Lummi argue, however, that no prior proceeding has
established precisely the eastern boundary of the Strait of
Juan de Fuca, and that this eastern boundary is somewhere to
the west of the western shores of northern Whidbey Island.
The Klallam, on the other hand, argue that the eastern
boundary of the Strait of Juan de Fuca is the western shores
of northern Whidbey Island.
   LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 13

   No court has yet explicitly determined the eastern
boundary of the Strait of Juan de Fuca. Thus, the question
before the panel is, has a prior judicial decision in
Subproceeding 89-2 already established, by necessary
implication, the eastern boundary of the Strait of Juan de
Fuca such that future litigation of the question in this case is
controlled by law of the case.

     The district court found that earlier decisions in
Subproceeding 89-2 had already established that the Strait of
Juan de Fuca’s eastern boundary was the western shores of
northern Whidbey Island. In reaching this conclusion, the
district court relied on Judge Rothstein’s statement in
Subproceeding 89-2 that she could “discern no difference”
between the geographical area comprising “the Strait of Juan
de Fuca, Admiralty Inlet, and the Hood Canal,” as the
Klallam defined the case area in their request for
determination in Subproceeding 89-2, and “the waters of the
Strait of Juan de Fuca east from the Hoko River to the mouth
of Puget Sound, the waters west of Whidbey Island,
Admiralty Inlet, the waters south of Whidbey Island to the
present environs of Seattle, and the waters of Hood Canal,
south of Admiralty Inlet to a line drawn from termination
Point due east across Hood Canal,” as the Lummi defined the
case area in their cross-request for determination in the same
Subproceeding. To the district court, this statement
demonstrated that the Rothstein Decision held that “the Strait
of Juan de Fuca” and “the waters west of Whidbey Island”
were not different regions, but rather the “waters” were
included in the “Strait.” Moreover, the district court
determined that, while it is true that the Ninth Circuit
reversed the Rothstein Decision with regard to the Admiralty
Inlet, finding that the Inlet was a part of the Lummi’s U&A,
it affirmed the rest of the Rothstein Decision. Therefore, the
14 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

district court held, it is law of the case that the eastern
boundary of the Strait of Juan de Fuca is the western shores
of northern Whidbey Island.

    This reasoning suggests it has already been determined by
necessary implication that the waters immediately west of
northern Whidbey Island are part of the Strait of Juan de Fuca
and hence not a part of the Lummi’s U&A. The Rothstein
Decision determined that “the Strait of Juan de Fuca,
Admiralty Inlet, [and] the mouth of the Hood Canal” and the
“waters west of Whidbey Island” were not different regions,
but rather the latter was a subset of the former. The Rothstein
Decision also determined that the Strait of Juan de Fuca was
not included in the Lummi’s U&A. Lummi Indian Tribe
affirmed the second of these findings, namely that the Strait
of Juan de Fuca was not included in the Lummi’s U&A.
235 F.3d at 450–52. This finding at least suggests that it also
affirmed the first finding that the “waters west of Whidbey
Island” are a subset of the Strait of Juan de Fuca, and
therefore are not included in the Lummi’s U&A.

    Other language in Lummi Indian Tribe, however, contains
reasoning that would suggest just the opposite, namely that
the waters immediately to the west of Whidbey Island are
included in the Lummi’s U&A. The reason the 2000 Ninth
Circuit panel reversed the Rothstein Decision to find that the
Admiralty Inlet was included in the Lummi’s U&A was that
the Admiralty Inlet “would likely be a passage through which
the Lummi would have traveled” from the Fraser River, south
through the San Juan Islands, to the present environs of
Seattle. Id. at 452. Applying that reasoning here, the
“passage through which the Lummi would have traveled”
from the San Juan Islands to the Admiralty Inlet would have
been the waters directly to the west of Whidbey Island. Thus,
   LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 15

this reasoning suggests that the waters immediately to the
west of northern Whidbey Island would be included within
the Lummi’s U&A.

    Both the district court and the Klallam on appeal argue
that applying this reasoning here would violate “the oft-
quoted principle that transit through an area does not, without
more specific evidence of fishing, lead to inclusion of an area
in a tribe’s U&A.” This principle comes from the Boldt
Decree, which stated

       Marine waters were also used as
       thoroughfares for travel by Indians who
       trolled en route. Such occasional and
       incidental trolling was not considered to make
       the marine waters traveled thereon the usual
       and accustomed fishing grounds of the
       transiting Indians.

384 F. Supp. at 353 (internal citations omitted). The Ninth
Circuit, however, in interpreting the Boldt Decree’s language
(“the [U&A] of the Lummi Indians at treaty times included
the marine areas of Northern Puget Sound from the Fraser
River south to the present environs of Seattle,” id. at 360),
concluded that this language meant the Admiralty Inlet was
included in the Lummi’s U&A, because “it is natural to
proceed through Admiralty Inlet to reach the ‘environs of
Seattle.’” Lummi Indian Tribe, 235 F.3d at 452. This
suggests that the Ninth Circuit had concluded that the
Lummi’s use of “the marine areas of Northern Puget Sound
from the Fraser River south to the present environs of Seattle”
was more than mere “occasional and incidental trolling.” If
to “proceed through Admiralty Inlet” rendered Admiralty
Inlet a part of the Lummi U&A, then to proceed from the
16 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

southern portions of the San Juan Islands to Admiralty Inlet
would have the same effect: to render the path a part of the
Lummi U&A, just like Admiralty Inlet. This implicit
conclusion would suggest that the Lummi Indian Tribe panel
interpreted the Boldt Decree’s language to mean that the
Lummi had a continuous and unbroken U&A connecting
Fraser River to Seattle. This would further suggest that it has
already been determined by necessary implication that the
waters immediately west of northern Whidbey Island are a
part of the Lummi’s U&A.

    Thus, each of Lummi Indian Tribe’s two holdings implies
a different result. Therefore, we conclude that Lummi Indian
Tribe is ambiguous regarding whether the waters immediately
to the west of northern Whidbey Island are included within
the Lummi U&A, and accordingly that this issue has not yet
been decided explicitly or by necessary implication.

    The law of the case doctrine applies only when the issue
was “decided explicitly or by necessary implication in the
previous disposition.” Id. (internal quotation marks and
brackets omitted); see United Steelworkers of Am. v. Ret.
Income Plan For Hourly-Rated Employees of ASARCO, Inc.,
512 F.3d 555, 564 (9th Cir. 2008) (holding that “law of the
case acts as a bar only when the issue in question was actually
considered and decided by the first court”). We hold that no
prior decision in this case has yet explicitly or by necessary
implication determined whether the waters immediately west
of northern Whidbey Island are a part of the Lummi’s U&A.
      LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 17

Therefore, the district court erred in concluding that the issue
was controlled by law of the case.1

                              Conclusion

    Therefore, we REVERSE the district court’s grant of the
Klallam’s motion for summary judgment and REMAND to
the district court for further proceedings consistent with this
opinion.



RAWLINSON, Circuit Judge, dissenting:

    I respectfully dissent from the majority’s conclusion that
no court has determined whether the “usual and accustomed
[fishing] grounds and stations” (U&A) for the Lummi Nation
Tribe (Lummi) included the waters west of northern Whidbey
Island.




  1
    We agree with Judge Rawlinson that Lummi Indian Tribe, 235 F.3d
443, by affirming Judge Rothstein’s decision that the Strait of Juan de
Fuca is not within the Lummi U&A, implied that it was also affirming
Judge Rothstein’s conclusion that the waters west of northern Whidbey
Island were not a part of the Lummi U&A. The dissent, however, does
not address the reasoning implicit in the panel’s reversal of Judge
Rothstein’s conclusion regarding the Admiralty Inlet. That reasoning
implied that the Lummi U&A contains an unbroken swath from Fraser
River south to the present environs of Seattle, thereby including at least
the waters immediately west of Whidbey Island. Because these two
implications point in opposite directions, the Ninth Circuit opinion cannot
have “necessar[il]y impli[ed]” one way or the other whether the Lummi
U&A contain any waters west of northern Whidbey Island.
18 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

    In my view, the answer to this question is contained in our
prior opinion, United States v. Lummi Indian Tribe, 235 F.3d
443 (9th Cir. 2000). That case also addressed a challenge to
Judge Rothstein’s adherence to Judge Coyle’s previous
determination that neither the Strait of Juan de Fuca,
Admiralty Inlet nor the mouth of the Hood Canal were within
the Lummi’s usual and accustomed fishing areas. See id. at
447. Judge Rothstein’s adherence to Judge Coyle’s decision
followed her application of the law of the case doctrine. See
id.

    As the district court noted, Judge Rothstein was quite
detailed in her description of the areas sought to be included
by the Lummi in its U&A:

            This request [the Lummi Cross-Request
        for Determination]1 sought a declaration that
        the Lummi U&A included the waters of the
        Strait of Juan de Fuca east from the Hoko
        River to the mouth of Puget Sound, the waters
        west of Whidbey Island to the present environs
        of Seattle and the waters of Hood Canal. . . .
        The Lummi have not asserted that their cross-
        request covers a different area covered by the
        Four Tribes’ initial request and by Judge
        Coyle’s decision. Rather, they argue that
        Judge Coyle’s decision is not final and is of
        no precedential value. The court can discern
        no difference between the two requests for


 1
   The Lummi’s Cross-Request for Determination sought to include the
same areas that competing tribes described as the Four Tribes sought to
have excluded in the initial petition before Judge Coyle. See Lummi,
235 F.3d at 446–47.
  LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION 19

       determination, nor have the Lummi
       convincingly argued that there is a difference.
       Thus, this order is intended to resolve both
       requests for determination.

United States v. Washington, Nos. CV 70-9213 RSM, 11-SP-
02, 2012 WL 4846239 at *6 (W.D. Wash., Oct. 11, 2012)
(emphases added).

   Judge Rothstein’s ruling encompassed the following facts:

   1. The Four Tribes filed an initial proceeding seeking to
      exclude the waters west of Whidbey Island from the
      Lummi U&A. See id. at 2.

   2. Judge Coyle granted summary judgment in favor of
      the Four Tribes, but never reduced his order to
      judgment. See id.

   3. The Lummi subsequently filed a “Cross-Request For
      Determination” seeking to include within its U&A the
      waters west of Whidbey Island. See id.

   4. Judge Rothstein viewed the initial proceeding filed by
      the Four Tribes seeking to exclude the waters west of
      Whidbey Island and the cross-request for
      determination filed by the Lummi seeking to include
      the waters west of Whidbey Island as the one and the
      same request—to determine if the waters west of
      Whidbey Island were included in the Lummi U&A.
      See id. at 6.

   5. Judge Rothstein interpreted Judge Coyle’s decision as
      law of the case that the disputed areas, including the
20 LOWER ELWHA KLALLAM INDIAN TRIBE V. LUMMI NATION

        waters west of Whidbey Island, were not within the
        Lummi U&A. See Lummi, 235 F.3d at 447.

     On appeal of Judge Rothstein’s ruling, we reversed only
to the extent that her ruling excluded Admiralty Inlet from the
Lummi U&A. In doing so, we described Admiralty Inlet as
“consist[ing] of the waters to the west of Whidbey Island,
separating that island from the Olympic Peninsula. . . .” Id.
at 452. It stands to reason that any other portion of the waters
west of Whidbey Island that were not included in our
description remain excluded from the Lummi U&A. In
Lummi, we had no difficulty “concluding that Judge
Rothstein properly applied the law of the case doctrine.”

   I continue in the belief that our prior conclusion is correct,
and that the law of the case doctrine precludes further
expansion of the Lummi U&A. I would affirm the district
court.
