928 F.3d 783

PAEZ, Circuit Judge, concurring in part and dissenting in part:
I agree with my colleagues that the Skokomish's claim over the Satsop River is not supported by the 1984 Subproceeding's holding in United States v. State of Wash. , 626 F. Supp. 1405 (W.D. Wash.), aff'd , 764 F.2d 670 (9th Cir. 1985). I disagree, however, with the majority's conclusion that we may not reach the merits of the Skokomish's claim because of its failure to comply with the pre-filing requirements.
The majority concedes that the Boldt Decision's pre-filing requirements are not jurisdictional barriers per se, but attempts to recast them as mandatory claim-processing rules that preclude our review. In doing so, the majority overlooks the fact that mandatory claim-processing rules "may be waived or forfeited." Hamer v. Neighborhood Hous. Servs. of Chicago , --- U.S. ----, 138 S. Ct. 13, 17, 199 L.Ed.2d 249 (2017). Defendants did precisely that. See Oral argument at 27:53-28:35, United States v. Jamestown S'Klallam Tribe , No. 17-35760 (9th Cir. Oct. 9, 2018), https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000014318. It is in fact the majority's opinion that involves quite a lot of maneuvering, asserting it has jurisdiction but may not reach the merits, and yet still commenting on the merits of the Skokomish's claim. I would clearly hold that the district court had jurisdiction and deny the Skokomish's claim on the merits.
Jurisdiction is "the courts' statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Environment , 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ; see also Arbaugh v. Y&H Corp. , 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). As the majority describes at length, the Boldt Decision was the result of lengthy and complex litigation over the fishing rights of tribes in the state of Washington. United States v. Washington , 384 F. Supp. 312 (W.D. Wash. 1974), aff'd , 520 F.2d 676 (9th Cir. 1975) (" Boldt Decision"). The district court had jurisdiction over the original proceeding under 28 U.S.C. §§ 1345 (cases involving the United States as a party), 1331 (cases with a federal question), 1343 (cases involving civil rights), and 1362 (cases brought by any Indian tribe). Id . at 328. At least one of these provisions would provide for district court jurisdiction over-in other words, power to hear-the Skokomish's claim if filed as an entirely new action and not a subproceeding under the Boldt Decision.
The majority rejects the Skokomish's attempt to invoke the court's continuing jurisdiction under Paragraph 25 of the Boldt Decision, id . at 419, based on its failure to comply with pre-filing requirements. This holding, however, overlooks the fact that the district court nevertheless did exercise its continuing jurisdiction over the Skokomish's claim and denied it on the merits. Compliance with the Boldt Decision's Paragraph 25 procedural prerequisites are obligatory, but they are not a "jurisdictional" restriction on the district court's constitutional and statutory power to adjudicate the claim.
In fact, this would not be the first time that the district court waived strict compliance with Paragraph 25 pre-filing procedures. In Muckleshoot Tribe v. Lummi Indian Tribe , one of the tribal parties argued that the district court erred in entertaining a summary judgment motion because the moving tribe failed to initiate a separate subproceeding as provided in Paragraph 25. 141 F.3d 1355, 1357 (9th Cir. 1998). The district court agreed that the Muckleshoot failed to follow the pre-filing procedures under Paragraph 25, but nevertheless waived the technical compliance with Paragraph 25 since both tribes had notice of the issues for several years. Id . at 1358. On appeal, we affirmed the district court's decision. Id . Critically, we described the district court's decision as one "regarding the management of litigation," which is reviewed for abuse of discretion. Id . (citing O'Neill v. United States , 50 F.3d 677, 687 (9th Cir. 1995) ). We found "no abuse of discretion in the district court's decision to entertain [the] Muckleshoot's motion without requiring initiation of a new, separate subproceeding with all the attendant cost and delay ." Id . (emphasis added).
Similarly, the district court's resolution of the Skokomish's claim involved management of the litigation. The court could have dismissed the Skokomish's petition for failure to follow Paragraph 25 pre-filing procedures. Yet, the court-sensibly-decided to move onto the merits to conserve time and resources, and dispose of the Skokomish's claim rather than forcing the parties to repeat the pre-filing process. "Wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation, does not counsel rigid mechanical solution of such problems." O'Neill , 50 F.3d at 687 (citing Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co. , 342 U.S. 180, 183-84, 72 S.Ct. 219, 96 L.Ed. 200 (1952) ); see also Arbaugh , 546 U.S. at 515, 126 S.Ct. 1235. Under the majority's approach, the district court and the parties would now be forced to undergo duplicative litigation. In the interest of judicial economy and giving due deference to the district court's decision to rule on the merits, I would hold that the district court did not abuse its discretion in exercising jurisdiction over the Skokomish's claim and affirm its summary judgment ruling.
Lastly, I cannot join Judge Bea's separate concurrence because he provides no substantive basis in the record or elsewhere for his suggestion that the ultimate objective of the Boldt Decision has been met. Moreover, these comments exceed the scope of our review. To my knowledge, no party has requested the district court to modify or terminate its continuing jurisdiction. We should refrain from commenting on the relevance of and necessity for Judge Boldt's decree until that issue has been fully vetted in the district court and is properly before us.

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