February 16, 2007

Where oh where is Puget Sound?

This is a longish story of a recent lawsuit (U.S. v Washington, C70-9213, Subproceding 05-03) in which there is confusion about whether there is language ambiguity or vagueness in the case  and some surprising inferences made by the judge.  It's hard enough to figure out what people mean when they write or talk but when we try to determine exactly what a now-deceased judge intended in a text he wrote over three decades ago, the task gets even more complicated. But this is a common problem facing the legal system, as most Constitutional lawyers will probably tell you.

For example, we may think we know the geographical dimensions of Puget Sound, but one Federal Court hasn't found it that easy. The recent legal battle over fishing rights in Puget Sound is a case in point. The problem faced by all the parties in the dispute was how to discover what the late Honorable George H. Boldt meant back in the mid 1970s when he assigned territorial fishing rights in Puget Sound to a number of different Indian tribes.

Recently the Upper Skagit and Swinomish Tribes filed suit in federal court to stop the Suquamish Tribe from taking crab on the eastern side of Whidbey Island in Puget Sound. They claimed that Judge Boldt's ruling was ambiguous, adding, however, that his intentions were very clear when he outlined the territory of the Suquamish Tribe's usual and accustomed fishing areas. In several opinions written at that time and shortly afterward, Judge Boldt adoped the description of Puget Sound set forth in the Joint Statement prepared by the Washington Department of Fisheries, U.S. Fish and Wildlife Service, and the Washington Department of Game on May 14, 1973. The relevant part of this description reads as follows:

As used in this report...the term "Puget Sound" includes the Strait of Juan de Fuca and all the saltwater areas inland therefrom, and all terms and discussions which would otherwise have a broader or more general scope -- such as "fishery resource," "anadromous fish," "salmonoids," "total catch," "hatcheries," "freshwater areas," etc. are to be construed as being limited to the aforementioned geographical area and species to which this report is confined.

Seven months later, in the case of  U.S. v Quinalt Tribe et al. Judge Boldt described the usual and accustomed fishing grounds of the Suquamish Tribe in that area by essentially adopting the Joint Statement's definition of "Puget Sound" as follows:''

The usual and accustomed fishing places of the Suquamish Tribe include the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal. (U.S. v. Washington, 459 F. Supp. 1020, 1049)

So here's the conflict. The Suquamish argued that Judge Boldt's description above embraces all passages and bays along with the rest of the marine waters that then (and now) consitute Puget Sound while the complaining tribes asserted that this language is ambiguous because it doesn't specify certain waters lying on the eastern side of Whidbey Island, known as Saratoga Passage and Skagit Bay.

First of all, we need to deal with the meaning of "ambiguity." Something ambiguous has two or more known and possible meanings, causing the reader to look for other known textual clues to determine which of these clues provides the writer's possible intention. A simple test for ambiguity might ask, "Does the text mean X or Y where both X and Y are possible answers? More immediately the question might be, "Did Judge Boldt's text mean Puget Sound or some other area?"

Ambiguity doesn't seem to be the problem in this dispute. Judge Boldt gave a broad description of the entire Puget Sound area, not mentioning every bay, passage, harbor, strait, or inlet that this definition might include. His  words did not mean Long Island Sound or the Bay of Biscayne. What the complaining tribes really seem to want to say here is that Judge Boldt's description is, to them, vague and incomplete, permitting an unspecified range of possible interpretations. A simple test for vagueness might ask, "Did Judge Boldt's text tell us everything we might need or want to know?" That's not the same thing as ambiguity. Resolving the meaning of a vague description usually requires the reader to find and add new information from outside of the text in order to  clarify or reveal that which was not included or made explicit in the original writing.

The current judge earlier had ruled that Judge Boldt's determination of the Suquamish's fishing areas was a final decision and that it cannot now be "altered or amended," to which he added, "but it can be clarified." The question, therefore, is whether "clarifying" can be done without "altering" or "amending" the original text of Judge Boldt's 1975 decision. The current judge claimed that it can. If that 1975 description of Puget Sound was ambiguous, two or more possible meanings might be fair game for a clarification. But if Judge Boldt was vague, the reader has to add external information to try to clarify it. But doing so sounds a lot like "altering" or "amending" the original decision, something that the current judge had already said would not be permitted.

The difference between ambiguity and vaguenss was not apparent to the tribes or to the judge dealing with the current case. Perhaps this isn't surprising, since the definition of ambiguity that the current judge cited from Black's Law Dictionary also doesn't appear to  distinguish clearly between ambiguity and vagueness. The judge quoted this portion of Black's definition of ambiguity:

Doubleness; doublenss of meaning. Duplicity, indistinctness, or uncertainty of meaning of an expression used in a written instrument. Want of clearness or definiteness; difficult to comprehend or distinguish; of doubful import ... Ambiguity of language is to be distinguished from unintelligibility and inaccuracy, for words cannot be said to be ambiguous unless their signification seems doubtful and uncertain to persons of  competent skill and knowledge to understand them.

Here Black, like some desk dictionaries, appears to equate "doubleness of meaning" with "indistinctness," "uncertainty," and "want of clearness or definiteness." "Doubleness of meaning" sounds a bit like ambiguity and the latter three senses seem very much like vagueness, while "inaccuracy" seems to have little or nothing to do with ambiguity. Inaccuracy is simply wrong information and nobody in this case had accused Judge Boldt of being wrong. Black's definition here appears to make no distinction between words or expressions that have more than one possible meaning derivable from that text (ambiguity) and something for which the text doesn't say enough about (vagueness). This difference was central to the current dispute.

Even with this apparent confusion, the case had to be settled somehow. And here's where inferences come in. In his 2006 decision, the current judge agreed with the complaining tribes that Judge Boldt used "Puget Sound" ambiguously but he further claimed that under the rules of the Ninth Circuit, the Court must look to the "actual evidence" that was before Judge Boldt to see if that suggests that when Judge Bolt wrote his decision, he "intended something other than the apparent meaning." This leads to the questions: What inferences can be made about Judge Boldt's decision and what is the actual evidence?

The burden of proof on the complaining tribes was to demonstrate (with whatever inferences they could find) that there was no evidence before Judge Boldt in 1975 that the Suquamish ever fished on the east side of Whidbey Island or that the tribe even traveled through these areas on their way to the San Juan Islands and Fraser River areas.

So where could such inferential evidence come from? In his original decision that assigned fishing areas to various Puget Sound tribes, Judge Boldt relied heavily on the 1975 detailed reports and testimony of an anthropologist who had done extensive research on the history of Puget Sound tribes and their usual and accustomed fishing areas. Her reports indicated that historically the Suquamish Tribe had traveled widely by canoe, ranging as far north as the mouth of the Fraser River, also noting that it was common for all Puget Sound Tribes to travel throughout the Puget Sound area to harvest fish, to visit relatives, and to attend social occasions such as potlatches, weddings, and celebrations. She even opined that the Suquamish undoubtedly would have fished the marine waters along the way as they traveled to various places, including Whidbey Island. Although she mentioned various areas where the Suquamish traveled and fished, she did not specifically indicate EVERY area where they fished, even though her report made it clear that the tribe had commonly traveled and fished in those areas.

The current judge stressed that nowhere in this anthropologist's discussion were Skagit Bay and the Saratoga Passage specifically mentioned as places where the Suquamish took fish. He further commented that her statement that the Suquamish traveled to Whidbey Island was "insufficient to support the finding that they fished the eastern side of Whidbey Island" even though the anthropologist had reported how common it was for tribes to fish wherever they traveled. In short, the judge was not willing to accept the inference that the Suquamish had fished in every place where they commonly traveled.

So now we know what inferences the current judge would NOT make. But what inferences did he consider acceptable? Three of them played a crucial role in his decision:

1. Since in 1975 Judge Boldt did not specify the place name of every bay, inlet, strait, harbor, and canal of Puget Sound in his delineation of the usual and accustomed fishing areas assigned to various tribes, the current judge inferred that Judge Boldt did not intend to include these areas when he wrote about Puget Sound. For the purpose of the current case, then, Puget Sound appears to be that body of seawater extending south from the Fraser River to the tip of Vashon Island, bounded in the east by continous land and to the west by the Pacific Ocean -- but NOT including any contiguous seawater areas such as Skagit Bay and Saratoga Passage.

2. When the anthropologist included the word, "fished," in some but not all of her descriptions of the areas the Suquamish historically had traveled by water throughout Puget Sound, the current judge inferred that she meant that the Suquamish did NOT fish in those areas where the word, "fished," did not appear in her report.

3. When the current judge found subsequent fishing regulations that excluded tribes from fishing on the east side of Whidby Island, he inferred that the Suquamish "appeared to follow those regulations," enough evidence for him also to infer that the tribe historically had never  fished there. 

These inferences were enough to cause the judge to resolve or clarify or amend or alter Judge Boldt's alleged ambiguity and to rule in favor of the Upper Skagit and Swinomish and against the Suquamish. He then invited the Suquamish to offer some better evidence to overcome the inferences found in his decision. The anthropologist's report, saying that the Puget Sound Tribes fished wherever they traveled was not the inference the current judge was looking for and he would not permit that anthropologist to testify in the current case to clarify or supplement her 1975 report on the grounds that such testimony would be "pure speculation" as to what Judge Boldt might have done with the same testimony.

So where is this Puget Sound that Judge Boldt defined in 1975 and repeated throughout his decisions over the following three years? According to the judge in the current case, Judge Boldt was ambiguous about the geographical dimensions of Puget Sound fishing areas even though he had described the Suquamish fishing grounds clearly, although broadly, as noted above. He did not confuse Puget Sound with some other body of water. What Judge Boldt did NOT specify was every bay, passage, harbor, strait, and inlet that was included in the specified saltwater area called Puget Sound.  One might ask why Judge Boldt would have needed to do this at all, especially since he followed the same description practice (found in the joint statement prepared and adopted by the  state's Department of Fisheries, Department of Game, and the U.S. Fish and Wildlife Service) when he defined the usual and  accustomed fishing areas of various Puget Sound tribes in 1975, including the Lummi, Puyallup, Swinomish, Nooksack, and Suquamish Tribes.

So where oh where is Puget Sound? I strongly suspect that today, if we were to talk with fishermen fishing in Skagit Bay, Saratoga Passage, the Strait of San Juan de Fuca, Rosari Straits, Hood Canal,  Admiralty Inlet, Crescent Harbor, Deception Pass, and other areas, and ask them if they were fishing in Puget Sound, they would agree. Because that's what Puget Sound is, just the way Judge Boldt described it over three decades ago.

Posted by Roger Shuy at February 16, 2007 12:24 PM