928 F.3d 783

BEA, Circuit Judge, concurring:
In the proceedings below, the district court opined that "[b]ringing disputes such as the instant one ... bolsters the idea that perhaps the sun has set on Judge Boldt's injunction and this Court's continuing jurisdiction." Our colleagues on this circuit have expressed that sentiment before, Washington , 573 F.3d at 709, and I echo it here.
"If a durable remedy has been implemented, continued enforcement of the order is not only unnecessary, but improper." Horne v. Flores , 557 U.S. 433, 450, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009). Judge Boldt found a permanent injunction necessary to protect "the anadromous fish resource, the rights of the Indian tribes," and to ensure "the lawful exercise of state police power." Boldt Decision , 413.
Forty-five years later, there is ample reason to believe that these goals have been achieved. Off-reservation fishing is effectively managed, Wash. Dep't of Fish & Wildlife, 2018-19 Co-Managers' List of Agreed Fisheries , https://wdfw.wa.gov/sites/default/files/2019-03/2018-19agreement.pdf (Apr. 13, 2018), enforcement of treaty rights is no longer an issue, and the Washington Supreme Court is no longer an unfriendly place for tribal litigants, Washington State Dep't of Licensing v. Cougar Den, Inc. , --- U.S. ----, 139 S. Ct. 1000, 203 L.Ed.2d 301 (2019). So, then, why are we here?
Elsewhere, tribes adjudicate their fishing rights in state and federal court without special jurisdictional or pre-filing requirements. See, e.g. , State v. Tinno , 94 Idaho 759, 497 P.2d 1386 (1972) ; State v. Watters, Jr. , 211 Or.App. 628, 156 P.3d 145 (2007). Those adjudications, moreover, involve straightforward interpretations of treaty language rather than an inquiry into "what Judge Boldt meant in precise geographic terms by his use of [certain] phrase[s]." Muckleshoot I , 141 F.3d at 1359. I do not doubt that litigation would continue in the absence of the Boldt Decision's continuing jurisdiction. But such litigation would at least treat the tribes for what they are: "separate sovereigns" who have signed treaties with the United States, Santa Clara Pueblo v. Martinez , 436 U.S. 49, 56, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), and who can vindicate their rights without an "extraordinary" judicial decree, R.R. Comm'n of Tex. v. Pullman Co. , 312 U.S. 496, 500, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
Of course, we need not decide whether Judge Boldt's decree should be altered because no party has asked us to. Here, we merely affirm the district court's summary judgment order on the ground that the Skokomish failed to comply with the Boldt Decision's pre-filing jurisdictional requirements. But we should reevaluate Judge Boldt's equitable decree soon. The "ultimate objective" of the Boldt Decision was to "finally settle ... as many as possible of the divisive problems of treaty right fishing" that pitted "state, commercial and sport fishing officials and non-Indian fishermen on one side and tribal representatives and members on the other side." Boldt Decision , 329-30. At some point, this court should consider whether that objective has been met.
Anadromous fish are fish who "ascend[ ] rivers from the sea at certain seasons for breeding," such as salmon. Anadromous , Merriam-Webster's Dictionary (3rd ed. 1961).

Passage view · GavelSight