[00:00:00] Speaker 06:
All right, thank you.

[00:00:00] Speaker 06:
The next case on the argument calendar is Stillaguamish Tribe of Indians versus Upper Skagit Indian Tribe and Lumi Indian Nation.

[00:00:10] Speaker 06:
And I apologize if I have mispronounced any of the party names.

[00:00:14] Speaker 06:
My understanding is, before we start, that the Appalachians are going to be splitting their time 10 minutes each.

[00:00:20] Speaker 06:
Am I correct?

[00:00:22] Speaker 06:
So just for your information, the clock will be your 10 minutes and will not count down from 20 for each of you.

[00:00:30] Speaker 06:
It will count down for 10, and when it reaches zero, your time will be done.

[00:00:35] Speaker 06:
Whenever you're ready, counsel.

[00:00:43] Speaker 01:
Good morning, Your Honors.

[00:00:44] Speaker 01:
May it please the court, Rob Roy Smith with Kilpatrick on behalf of the Stillaguamas Tribe of Indians.

[00:00:50] Speaker 01:
With me at council table is Stillaguamas Tribal Attorney Raven Araway-Heeling, and I would like to reserve five minutes for rebuttal.

[00:00:59] Speaker 01:
Your honor, Stillaguamish is back before this court for the second time in two years because a district court chose to ignore the prior panel's clear remand instruction to evaluate all of Stillaguamish's evidence, whether it had been considered in other contexts or not, and to make further factual findings as to the tribe's evidence of village presence and fishing activities in the claimed waters.

[00:01:27] Speaker 01:
In response, the district court stated that he was acutely familiar with the 50-year history of this case, and that there was no need for him to issue line-by-line conclusions of law for each Stillaguamish village.

[00:01:42] Speaker 06:
Is there anything in the prior panel's order which ordered the district court to do something contrary to what the district court said and what you just read?

[00:01:54] Speaker 06:
that would literally order him to do something to address things line by line.

[00:02:01] Speaker 01:
The exact instruction from the district court was to make further factual findings.

[00:02:07] Speaker 06:
And the district court, I may have these numbers wrong, but my recollection is the original order was like six pages and the second order was like 12 pages.

[00:02:15] Speaker 01:
That's right.

[00:02:16] Speaker 06:
So at least literally the district court complied by making additional factual findings.

[00:02:23] Speaker 01:
There are additional factual findings, Your Honor, but the district court still misapplied the law of the case to Stillaguamish's evidence that supports their fishing activity.

[00:02:33] Speaker 05:
Well, the problem there is that the prior panel decision

[00:02:36] Speaker 05:
says the district court correctly applied the law of the case.

[00:02:40] Speaker 05:
And so how is it the prior panel's decision required the district court to change its application when the prior panel said that they did it right?

[00:02:49] Speaker 01:
Well, the prior panel said that the district court did it right as to that first order.

[00:02:54] Speaker 01:
The prior panel vacated that order.

[00:02:57] Speaker 01:
The district court issued an amended order with new findings.

[00:03:01] Speaker 01:
And in particular, the district court's recitation of the law of the case as to village evidence was just plain wrong and inconsistent with the law of the case.

[00:03:09] Speaker 06:
So, counsel, this doesn't go directly to what you just said, but more to follow up with Judge Clifton's question.

[00:03:17] Speaker 06:
So the district court said,

[00:03:19] Speaker 06:
I'm sorry, the prior panel said the district court correctly applied the law of the case and then we conclude that the district court correctly applied the controlling law of United States versus Washington.

[00:03:32] Speaker 06:
Those two statements actually become law of the case, yes?

[00:03:43] Speaker 01:
I would say no, Your Honor.

[00:03:45] Speaker 06:
How can that, well, why don't you tell me how it wouldn't be law of the case and binding on the district court when the appellate court made those two very clear statements.

[00:03:57] Speaker 01:
Well, the appellate court made those clear statements with respect to an order that it then vacated and remanded back to the district court for additional.

[00:04:08] Speaker 05:
That doesn't vacate the prior panel's order, which said it was right.

[00:04:11] Speaker 05:
It doesn't, so we got to disconnect here.

[00:04:15] Speaker 01:
Well, no, but the fact that he may have been right on the law the first time doesn't mean he was right on the law this time.

[00:04:20] Speaker 06:
No, that may well be true, but

[00:04:23] Speaker 06:
My question was the circuit courts, our court statements, the district court correctly applied the law of the case the first time.

[00:04:34] Speaker 06:
and the district court correctly applied the controlling law of United States versus Washington the first time become law of the case, yes?

[00:04:43] Speaker 06:
Yes.

[00:04:43] Speaker 06:
All right, thank you.

[00:04:44] Speaker 02:
What is the legal error that you're claiming?

[00:04:48] Speaker 02:
I'm looking at the second page of the amended order in which the court says the only legal issue at trial was whether historical evidence and expert testimony

[00:05:01] Speaker 02:
and all reasonable inferences drawn there from, demonstrated by a preponderance of the evidence that Stillaguamish customarily fished the claimed waters, et cetera, at and before treaty times.

[00:05:14] Speaker 02:
Do you agree with that as being the legal issue that was at stake?

[00:05:18] Speaker 01:
I agree that that is the correct restatement as to what it takes for a tribe to prove usual and accustomed fishing.

[00:05:25] Speaker 02:
And was that the issue that was at stake?

[00:05:28] Speaker 01:
That was ultimately the issue at trial.

[00:05:32] Speaker 01:
Where the district court erred in its amended order significantly was first in restating how village and presence evidence is applied to the facts.

[00:05:46] Speaker 01:
So as I indicated, the district court in the amended order says the presence of villages without more does not go to the ultimate issue before the court.

[00:05:55] Speaker 01:
That's not the law of the case, and it never has been.

[00:06:00] Speaker 01:
Village evidence and evidence of presence, which would be seasonal encampments or other seasonal use, has always been enough without additional evidence.

[00:06:09] Speaker 05:
Let me read from the first panel decision.

[00:06:12] Speaker 05:
Although the district court has previously inferred phishing from evidence of village's travel and presence, such evidence has never been treated as determinative of UNAs in the face of contradictory evidence.

[00:06:24] Speaker 05:
And so I'm not reading from the first panel decision a statement that where the district court entered its second order, it went badly astray.

[00:06:35] Speaker 01:
Well, but it's not, there was no, again, that statement from the prior panel is reciting the law of the case.

[00:06:45] Speaker 02:
I mean, that is a true statement as to how... So is it your position then that without contrary evidence, the village and presence evidence does suffice?

[00:06:57] Speaker 01:
Yes, and that has always been the law of the case.

[00:07:03] Speaker 05:
First panel goes on to say, inferences made by the district court in past sub proceedings do not necessarily bind the court to come to the same legal conclusions and others where the evidence is more equivocal.

[00:07:14] Speaker 05:
So it's more than contradictory evidence, it's the strength of the inference evidence.

[00:07:19] Speaker 05:
And I don't see how the district court's second order, the one that's before us now,

[00:07:26] Speaker 05:
stepped away from that.

[00:07:27] Speaker 05:
So tell us where it stepped away from that.

[00:07:29] Speaker 01:
Well, here's how it did so.

[00:07:32] Speaker 01:
So with respective village and presence evidence and making presumptions that the tribe fished in those waters adjacent to those villages, that has been the law of the case since 1978 and was affirmed by this court in 1981.

[00:07:46] Speaker 05:
Well, in at least some instances.

[00:07:48] Speaker 05:
But the fact that eyewitness testimony may be sufficient in some cases doesn't mean it's got to be accepted as sufficient in every case.

[00:07:57] Speaker 05:
In this case, you have some evidence and the district court looked at it and decided it wasn't sufficient to prove what had to be proven.

[00:08:05] Speaker 01:
Well, but that's another error by the district court here.

[00:08:09] Speaker 01:
The same standard that applied to tribes who were seeking use on accustomed fishing areas in the 70s, 80s, and 90s needs to apply to Stillaguamish.

[00:08:18] Speaker 01:
Now, the district court has long recognized, and this court has recognized, that there's scant evidence from 1855 to show fishing, and that's particularly true as to marine waters.

[00:08:29] Speaker 06:
So, counsel, first, the expert witness whose last name is F-R-I-D-A-Y, how do you pronounce that?

[00:08:35] Speaker 01:
Dr. Friday.

[00:08:36] Speaker 06:
Okay.

[00:08:36] Speaker 06:
So, for example, the district court, and this is just one example on page five of his second order, is discussing Dr. Friday.

[00:08:47] Speaker 06:
And he says, Dr. Friday essentially speculated that Stillaguamish must have been broadly fished, must have broadly fished in all the claimed marine waters in a means or fashion similar

[00:09:00] Speaker 06:
to other Coast Salish tribes without any direct evidence or sufficient indirect evidence

[00:09:05] Speaker 06:
or any reasonable inference to support that assertion.

[00:09:09] Speaker 06:
I mean, isn't that even if other triers of fact might decide differently, isn't the district court essentially doing what the prior panel has required the district court to do is look at inferences to be drawn from the evidence and decide what was reasonable and what wasn't?

[00:09:31] Speaker 06:
And again, I'm just giving this as one example.

[00:09:33] Speaker 01:
Yeah.

[00:09:34] Speaker 01:
Well, one of the things that the panel instructed the district court to do was to consider all of the tribe's evidence, including whether it had been introduced in other contexts or not.

[00:09:44] Speaker 01:
And that seems to be where the district court gets stuck here and declares that all of Stillaguamish's expert testimony is somehow speculative.

[00:09:53] Speaker 01:
But the prior panel acknowledged

[00:09:55] Speaker 01:
that part of this case is experts relying on the expert work that had come before it.

[00:10:02] Speaker 01:
And if you think about what speculative testimony is, it's testimony that lacks a factual basis or a reliable methodology.

[00:10:10] Speaker 01:
And that's not the case here.

[00:10:11] Speaker 01:
What we're talking about, and I think this is a great example of where the district court went astray, Dr. Barbara Lane, who has always been considered a highly credible expert in US v. Washington,

[00:10:23] Speaker 01:
And this court has relied on her work to find probable locations of usual and custom fishing areas as recently as 2015.

[00:10:30] Speaker 01:
The district court said that her work was was speculative and was mere speculative whispers that refers to her work generally or to a particular.

[00:10:42] Speaker 05:
instance where something from her, I think it was a letter, was offered up.

[00:10:47] Speaker 01:
Both.

[00:10:48] Speaker 01:
Both.

[00:10:48] Speaker 01:
So as to that letter, it was a private letter that Dr. Lane had written in the 80s where she said it would be inconceivable that Siligwamish would have villages on Port Susan and not also fish in those waters.

[00:11:03] Speaker 01:
That letter was admitted into evidence, and Dr. Lane is no stranger to this case, right?

[00:11:11] Speaker 01:
She's been intimately involved in this litigation from the beginning until her death a couple of years ago.

[00:11:18] Speaker 05:
She's not been with us for the last several years and doesn't appear to have been subject to cross-examination as to what that statement means in the context of this case.

[00:11:28] Speaker 01:
Not as to that letter.

[00:11:29] Speaker 01:
That may make a hearsay, although I would say there would be a hearsay exception for that, either present sense impression or sort of a learned treatise.

[00:11:37] Speaker 05:
Well, that's not a sense impression.

[00:11:38] Speaker 05:
That's an expert testimony.

[00:11:39] Speaker 05:
Nobody ever considers that a sense impression.

[00:11:42] Speaker 01:
Her letter might be, but it's not speculative.

[00:11:46] Speaker 01:
And Siligwamish also, and Dr. Friday relied upon, so Siligwamish offered evidence before the district court at trial from Dr. Lane under oath, where she said that Siligwamish had villages along the salt water in Port Susan and that Siligwamish fished those waters.

[00:12:05] Speaker 01:
That's not speculation, but that's how the district court construed her testimony, and also the testimony of all of the other of Stella Gwamish's witnesses, expert witnesses.

[00:12:19] Speaker 01:
And I would say, Your Honor, is that if this expert testimony that Stella Gwamish introduced at trial is speculative, then the expert testimony for the prior 50 years of this case has all been speculative too.

[00:12:34] Speaker 01:
The same methodology was what was used here, where the expert went and looked at anthropological and historical evidence to draw his own conclusions.

[00:12:43] Speaker 06:
So, counsel, on the point you were talking about before, where we're talking about Dr. Lane and also the Dorsey affidavit, the district court said that even if other expert witnesses had relied on this affidavit before,

[00:13:01] Speaker 06:
To evaluate still a Guam is treaty time marine fishing activities, which would include Dr. Lane in her 74 private letter.

[00:13:11] Speaker 06:
The affidavit does not address marine fishing or support any reasonable inference.

[00:13:15] Speaker 06:
of marine fishing.

[00:13:17] Speaker 06:
Is that an incorrect factual statement?

[00:13:19] Speaker 06:
That's at pages six and seven of the second order.

[00:13:23] Speaker 01:
It is not an incorrect factual statement.

[00:13:25] Speaker 01:
But we can even discount that letter, Your Honor.

[00:13:27] Speaker 01:
If that was the single piece of evidence that Silla Guamish had for fishing in Port Susan, maybe that would be problematic, right?

[00:13:34] Speaker 01:
But it is not, right?

[00:13:35] Speaker 01:
Dr. Lane testified under oath in prior sub-receivings, and this is at 8ER 1455 to 56.

[00:13:44] Speaker 01:
Areas like Port Susan and areas close to the mouth of the Stillaguamish River I think they were primarily fished by the Kiki Alice and Stillaguamish There is also that's again.

[00:13:56] Speaker 01:
That was that was under oath in prior subperson.

[00:13:59] Speaker 06:
What I'm looking at is I would say generally speaking

[00:14:03] Speaker 06:
the areas you have mentioned except areas like Port Susan and areas close to the mouth of the Stillaguamish River.

[00:14:09] Speaker 06:
I think they were primarily fished by and then mentioned, I apologize for the mispronunciation, Kiki Ellis and Stillaguamish.

[00:14:19] Speaker 06:
Pretty loose testimony there, isn't it, on 1456?

[00:14:25] Speaker 01:
Well, I would say, Your Honor, that it's consistent with Dr. Lane's testimony in other cases.

[00:14:31] Speaker 01:
So, for example, the Tulalip tribes obtained marine UNA in Port Susan based on an expert report that said that it was, quote, likely that they fished near a village in Hatsalou.

[00:14:46] Speaker 01:
So so the district court until this case has never let the absence of a perfect historical record Stop it from finding that there was tribal fishing in the marine waters Adam before treaty times And again, that's based on a recognition that there's a relaxed standard of proof that applies here right a relaxed What do you mean by relaxed?

[00:15:07] Speaker 05:
I mean, there's still a preponderance of the evidence standard Just to have to accept the evidence may be sketchy on both sides.

[00:15:14] Speaker 05:
You got to make it

[00:15:14] Speaker 05:
what you can out of it, but that doesn't mean it has to be accepted as persuasive.

[00:15:20] Speaker 05:
And if the district court as the trier of facts decides it's not persuasive, why isn't that something that triers of fact do?

[00:15:29] Speaker 01:
Well, they can do if this case was taken in isolation, but it cannot be considered without

[00:15:38] Speaker 01:
recognition as to how this same type of evidence has been consistently treated by the District Court since the first usual and accustomed case back in the 1970s.

[00:15:50] Speaker 01:
What the District Court did here was shift that standard.

[00:15:54] Speaker 05:
It made the standard of proof higher for Stillaguamish.

[00:15:58] Speaker 05:
Somebody's brief referred to judicial fatigue, and I'm not sure it's

[00:16:03] Speaker 05:
I mean, there is some level of fatigue, and particularly the district court judge who has to deal with it over and over and over again.

[00:16:09] Speaker 05:
Any of us who've been on the Ninth Circuit bench for a while has bound to have encountered some of these because there's so many of them, not as much as the district court has.

[00:16:18] Speaker 05:
But there's also, I think, some recognition with the passage of time.

[00:16:21] Speaker 05:
The evidence doesn't get any better.

[00:16:23] Speaker 05:
It gets that much sketchier.

[00:16:25] Speaker 05:
And if the body of evidence hasn't changed, and we're now 50 years after the first determination,

[00:16:32] Speaker 05:
It's hard to say that, well, if it wasn't asserted then, why should we decide that suddenly it's strong enough now to support a finding that nobody asked the court to make at the time then?

[00:16:44] Speaker 05:
I understand the 1974 decree carefully said you can ask to expand the area.

[00:16:51] Speaker 05:
But it's not like it's meant to be a wholesale, well, let's look at the old evidence and see what new claims we can bring out of that.

[00:16:58] Speaker 05:
The evidence hadn't gotten any better.

[00:17:00] Speaker 05:
its peers, and your case seems to be based on reanalysis of what somebody said many years ago.

[00:17:07] Speaker 05:
I'm not sure it's unfair for a district court to say it's just not persuasive enough in the circumstances that I'm trying to make this decision here.

[00:17:18] Speaker 05:
Why is that wrong?

[00:17:19] Speaker 01:
Your Honor, I would disagree with you because, one, I would reject the characterization of sort of like repackaging the evidence.

[00:17:28] Speaker 01:
What happened was, for example, that testimony that I read for you from Dr. Lane, that was testimony that was adduced from Tulalip in a different sub-receiving, but she was talking about Stillaguamish fishing.

[00:17:39] Speaker 01:
It had never been presented in a case in chief for Stillaguamish.

[00:17:44] Speaker 01:
And you're right, the evidence hasn't changed, arguably since 1855.

[00:17:48] Speaker 05:
Except that we can't ask her today about what she meant by some of those statements, because she's not with us anymore.

[00:17:55] Speaker 01:
as to that particular letter, but other statements were made under oath.

[00:18:00] Speaker 01:
And I was just like, also, it's not just Dr. Lane, right?

[00:18:03] Speaker 01:
There was also testimony that was introduced through Dr. Friday from other experts who also were less equivocal.

[00:18:11] Speaker 06:
Let me go back to something you said a couple of minutes ago where you were talking about Port Susan and Hatt's slew.

[00:18:17] Speaker 06:
And so I'm looking at Dr. Walker's affidavit or declaration and I know that you asked that it be struck on the grounds that it was a sham affidavit, the district court rejected that.

[00:18:30] Speaker 06:
But he reiterates his expert testimony in this affidavit with regard to regular fishing and the Port Susan area and the district court relied on that, right?

[00:18:46] Speaker 01:
No, the district court found that Dr. Walker's testimony was speculative as well.

[00:18:50] Speaker 06:
Right.

[00:18:50] Speaker 06:
But I mean, you had argued, correct me if I'm wrong, that Dr. Walker's deposition testimony supported strongly your case.

[00:18:59] Speaker 06:
Correct.

[00:19:00] Speaker 06:
And he walked it back, or he said it was misunderstood in the declaration.

[00:19:05] Speaker 06:
And then the district court said, taking into account the declaration, which I won't strike, that there's no there there.

[00:19:12] Speaker 01:
That is what the district court said.

[00:19:14] Speaker 01:
But again, Dr. Snyder, another expert prior in this case, said, unequivocally, Port Susan was fished by Kikialis, Snohomish, and Stillaguamish.

[00:19:23] Speaker 01:
That's 7ER 1443.

[00:19:25] Speaker 01:
Dr. Carol Riley said, the Stillaguamish River Indians hunted upriver but came down to Port Susan and lower Skagit Bay to fish and clam.

[00:19:35] Speaker 01:
That's a 7ER 1341.

[00:19:37] Speaker 01:
and 1331 to 37.

[00:19:38] Speaker 01:
So we have to look at the evidence in a whole, right?

[00:19:41] Speaker 01:
You can hand-peck the record and say, oh, well, you know, this letter, there wasn't cross-examination about it.

[00:19:48] Speaker 01:
Oh, well, Dr. Walker changed his mind.

[00:19:50] Speaker 01:
But there is other concrete testimony that shows that Stillaguamish was actually fishing these claimed waters, or there was evidence in the record similar to that for other tribes that established a marine UNA for them.

[00:20:01] Speaker 01:
I would like to reserve the 47 seconds I have left.

[00:20:04] Speaker 06:
So Council, we've taken up a lot of your time with questions, and so you can prepare.

[00:20:09] Speaker 06:
We'll give you your full five minutes for rebuttal.

[00:20:11] Speaker 01:
Appreciate that, Your Honor.

[00:20:12] Speaker 01:
Thank you.

[00:20:28] Speaker 06:
I can't tell you how to do it, but I've seen evidence that it can be done.

[00:20:36] Speaker 00:
The first time I argued in this court, the presiding judge actually had to interrupt the argument to tell me to lower it because no one could see me or hear me.

[00:20:45] Speaker 06:
We can see you now.

[00:20:46] Speaker 06:
Take your time to get started.

[00:20:49] Speaker 00:
Thank you.

[00:20:51] Speaker 00:
Good morning, your honors, and may it please the court.

[00:20:53] Speaker 00:
My name is Emily Haley from the Swamish Indian tribal community, and I'm here to argue today on behalf of the appellees.

[00:21:03] Speaker 00:
I will address the sufficiency of the amended order.

[00:21:06] Speaker 00:
and issues related to the law of the case, and whether there was evidence that Stillaguamish customarily fished.

[00:21:13] Speaker 00:
My co-counsel, David Hawkins, will address the relevant standard of review, why the relief that Stillaguamish is seeking in this court is not available, and why Stillaguamish's claim to Marie and UNA failed, while others, in particular, Upper Scadgetts, did not.

[00:21:31] Speaker 00:
And I'm going to apologize in advance because a lot of what I'm going to say is going to sound familiar.

[00:21:38] Speaker 00:
This court should affirm.

[00:21:42] Speaker 00:
for two reasons.

[00:21:43] Speaker 00:
The first is what you said, Judge Bennett.

[00:21:47] Speaker 00:
The amended orders factual findings complied with the court's mandate are not clearly erroneous and are sufficient to supplement, I mean, are sufficient to support judgment on partial findings.

[00:22:01] Speaker 02:
Counsel, I had a question about paragraph 12 that begins on page nine of the amended order.

[00:22:08] Speaker 02:
And in this paragraph, the court seems to dismiss the relevance of testimony from earlier years as being too old to be useful.

[00:22:23] Speaker 02:
But that made no sense to me in the context where we're looking at things that happened

[00:22:29] Speaker 02:
know, 200 years ago that I don't know why someone in 1973 wouldn't know just as much about 1800 as someone today.

[00:22:40] Speaker 02:
So I found that a very

[00:22:44] Speaker 02:
a very odd paragraph where he says these publications are several decades old and some of the submitted evidence predated the original Bolt decision, but to me that's kind of a so what.

[00:22:59] Speaker 02:
So what am I to make of that paragraph?

[00:23:02] Speaker 00:
Thanks, Your Honor.

[00:23:03] Speaker 00:
I want to make sure that we're talking about the right paragraph.

[00:23:06] Speaker 02:
So if you can just... I'm looking at page 8 and 9 of the amended order, paragraph number 12, which begins on page 8 at line 25 and carries over to page 10, line, it looks like, 6, a little bit wonky.

[00:23:29] Speaker 00:
Okay, I'm with you now.

[00:23:31] Speaker 00:
I think that your question goes to the ultimate issue of whether new evidence needs to be submitted in cases like this where tribes come back much later than Final Decision 1 to try to establish UNA and new fishing areas.

[00:23:49] Speaker 00:
And I don't think the law in that question is settled.

[00:23:53] Speaker 00:
In Siligwamish 1,

[00:23:55] Speaker 00:
the panel said that the district court needed to consider all of the evidence regardless of when it was created or who created it.

[00:24:06] Speaker 00:
On the other hand, there's some force to the district court's argument that allowing people to constantly re-litigate over the same pieces of evidence

[00:24:18] Speaker 00:
creates problems in terms of resources.

[00:24:21] Speaker 02:
But what's the logic?

[00:24:23] Speaker 02:
What's the logic of saying that old evidence about ancient times is less reliable or less probative than new evidence about even more ancient times?

[00:24:34] Speaker 02:
I mean, the logic escapes me.

[00:24:37] Speaker 02:
And I don't see him as giving the only, I just don't see the logic, I guess.

[00:24:49] Speaker 00:
And we may be reading it differently.

[00:24:51] Speaker 00:
As I read this paragraph, he is saying that one of the problems he finds with Dr. Friday's kind of reinterpretation of the evidence provided by earlier experts is that we have that evidence by earlier experts.

[00:25:08] Speaker 00:
And rather than relying on those experts' words,

[00:25:12] Speaker 00:
Dr. Friday has purported to reinterpret them often changing them.

[00:25:19] Speaker 06:
Council, I tend to look at this paragraph perhaps more in the way that you're looking at that I don't see the district court here as saying anything that happened before is irrelevant.

[00:25:30] Speaker 06:
I see the district court as saying in the last sentence of that paragraph that you read

[00:25:35] Speaker 06:
was he doesn't understand why we should give um... uh... doctor friday's interpretation of prior things uh... extra weight as opposed to looking at what was actually said yeah i think it i mean it's it's not obviously the best evidence role but it's kind of similar right that if we have

[00:25:56] Speaker 00:
Statements from dr. Lane, or we have a report from dr. Lane, then we can look at what she said herself not rely on what dr. Friday thinks she said and then it goes beyond that the dr. Friday was relying on evidence that That dr. Lane and others did not actually say in prior sub proceedings when they were asked to testify under oath about the still a guamish in particular

[00:26:22] Speaker 05:
Let me ask you, take a particular example.

[00:26:25] Speaker 05:
The one that your colleague pointed us to, which was volume eight of the excerpts 1456.

[00:26:38] Speaker 05:
And somebody, I think it was Dr. Lane, but actually I don't have the first page here, so I'm not 100% sure, is talking as an anthropologist and

[00:26:50] Speaker 05:
offers an opinion, apparently in a case not directly involving the current applicant.

[00:26:58] Speaker 05:
And I confess, I've lost track.

[00:27:01] Speaker 05:
Maybe it was, well, I'm not sure which tribe it was for.

[00:27:06] Speaker 05:
But there is discussion about how this area close to the mouth of the Stillesquamish River, I think they were primarily fished by

[00:27:18] Speaker 05:
Kiki Ellis and Stella Gwamish.

[00:27:23] Speaker 05:
So there's that statement and then there's some examination including, do you know what the Indian meaning of the word is?

[00:27:28] Speaker 05:
River people and so forth.

[00:27:30] Speaker 05:
We just have the one page, but there does appear to be some examination at the time of what this witness was saying, which did offer an opinion.

[00:27:42] Speaker 05:
separate so so as I understand you're saying it's fair game and the district court appropriately considered this evidence what it decided not to consider was dr. Friday's take on this evidence is that the distinction you're drawing I think that that

[00:28:04] Speaker 00:
is correct.

[00:28:05] Speaker 00:
He does both, right?

[00:28:07] Speaker 00:
In finding a fact five, he's talking about why he concludes that Dr. Friday's take on things is basically speculative because it's not grounded in any probative evidence of the assumption he's making, which is that the Stillaguamish tribe

[00:28:23] Speaker 00:
I'm acted in the same manner as its coast coastal neighbors.

[00:28:28] Speaker 00:
Separately, I think in the paragraphs that we were just discussing with Judge Graber.

[00:28:35] Speaker 00:
He's he's making that other point that.

[00:28:39] Speaker 00:
he can rely on the underlying statements of Lane without having them reinterpreted through Dr. Friday, particularly when Dr. Friday is not necessarily interpreting them in the way that the court has found is what they mean.

[00:28:59] Speaker 05:
So if we go back to this page 1456, there is an opinion expressed here, I guess, by Dr. Lane.

[00:29:09] Speaker 05:
that this particular area close to the mouth of the river was primarily fished by the two groups she identified.

[00:29:17] Speaker 05:
So as I understand it, you're telling us that this record didn't reject that because it was Dr. Friday's gloss just decided it wasn't sufficiently persuasive by itself and the standard of being applied by this record here was unless there was

[00:29:38] Speaker 05:
evidence of actual fishing, and this, he concluded, wasn't enough to get to that point.

[00:29:43] Speaker 00:
Yeah, I think that's exactly right, Your Honor.

[00:29:45] Speaker 00:
And, you know, Stillaguamish talks a lot about context, but a really important piece of context here is that Barbara Lane wrote an entire report in Final Decision I, where she extensively researched the territory and fishing practices of the Stillaguamish tribe at treaty time.

[00:30:06] Speaker 00:
and that report concluded that they lived on the river, that they fished on the river, that they didn't need to leave the river because the river provided all of their needs.

[00:30:16] Speaker 00:
Siligwamish does not talk about that at all.

[00:30:18] Speaker 00:
It instead relies on these statements that were made in a personal letter.

[00:30:24] Speaker 05:
This was testimony, but testimony in the context of a claim being brought by a different tribe.

[00:30:31] Speaker 00:
Right, and I think that

[00:30:33] Speaker 00:
What Judge Martinez is saying about it is that he finds that to be speculative because it wasn't something she testified about when she was testifying about the Stillaguamish in particular.

[00:30:46] Speaker 00:
She wasn't subject to cross-examination.

[00:30:49] Speaker 00:
She didn't come forward with the evidence underlying that opinion.

[00:30:54] Speaker 00:
She did not, you know, she did not explain, Stillaguamish did not explain, Dr. Friday did not explain why in 1974 or shortly before, Dr. Lane is writing a report saying that the Stillaguamish were isolated upriver Indians

[00:31:15] Speaker 00:
And then in 1975, she's writing a letter to Dr. Getchys saying it's inconceivable that they wouldn't have fished in Port Susan.

[00:31:24] Speaker 00:
When the evidence that she relies upon for that conclusion that they must have been fishing in Port Susan because of proximity was the same evidence available to her when she wrote a report.

[00:31:37] Speaker 00:
And then she actually appended to her report the two sites from the Dorsey affidavit

[00:31:43] Speaker 00:
at Warren Beach in Hatslou.

[00:31:57] Speaker 00:
I want to just speak briefly.

[00:32:00] Speaker 00:
If you go through the district court's amended opinion and compare it to the evidence that the

[00:32:10] Speaker 00:
Prior panel said that the district court needed to address it lines up almost one for one and in every instance The judge is explaining like you told me that I needed to consider this I considered it This is why I found it to be speculative or this is why I found it to be inconclusive

[00:32:30] Speaker 00:
and so When you have a situation where counsel you're you're substantially over your time.

[00:32:36] Speaker 06:
Would you like to conclude?

[00:32:37] Speaker 00:
Oh, I'm sorry I didn't realize yes, I would like to conclude.

[00:32:41] Speaker 00:
Thank you

[00:32:43] Speaker 00:
No, I mean, if you have a concluding statement, you can make it.

[00:32:48] Speaker 00:
Yes, thank you.

[00:32:49] Speaker 00:
This case has been going on for 55 years.

[00:32:51] Speaker 00:
Stillaguamish has had many opportunities to meet its burden of proof to establish customary fishing.

[00:32:58] Speaker 00:
It has not been able to do that.

[00:33:02] Speaker 00:
And although Stillaguamish does have a right to fish where it has UNA, it has not established UNA in the claimed waters.

[00:33:09] Speaker 00:
So this court should affirm.

[00:33:11] Speaker 00:
Thank you.

[00:33:12] Speaker 00:
And I apologize for being so far over on my time.

[00:33:14] Speaker 06:
No, it's fine, counsel.

[00:33:17] Speaker 06:
This is a complicated, important case, and we're all taking it seriously.

[00:33:46] Speaker 03:
May it please the court, David Hawkins, general counsel for the upper Skagit Indian tribe.

[00:33:50] Speaker 03:
With me today is Ariel Martinez, outside counsel for the tribe.

[00:33:54] Speaker 06:
So counsel, if it's possible, if you could adjust the microphones just so we can hear you a little better.

[00:33:59] Speaker 03:
I'm sorry, Your Honor.

[00:34:00] Speaker 03:
My voice is a little hoarse.

[00:34:01] Speaker 03:
I've been regulating a fishery on the river and so my...

[00:34:05] Speaker 03:
been yelling a lot lately.

[00:34:11] Speaker 02:
We're glad you've used up the yelling when you get here.

[00:34:15] Speaker 03:
This panel's review is strictly limited to whether Judge Martinez properly granted uppers gadgets rule 52C motion.

[00:34:25] Speaker 03:
The previous mandate explicitly affirmed that the district court properly applied the law of the case, but remanded for Judge Martinez to clarify the evidence he relied upon, its weight and interpretation to reach his determination.

[00:34:41] Speaker 03:
This panel must determine if the district court's reformed order is clearly erroneous.

[00:34:48] Speaker 03:
To be clearly erroneous,

[00:34:49] Speaker 03:
This panel does not have to agree with the district court's finding, but it must determine that no reasonable person could have reached the same conclusion.

[00:35:01] Speaker 03:
You must find that the district court's decision was one, illogical, two, implausible, or three, without support in inferences that may be drawn from the facts in the record.

[00:35:15] Speaker 03:
Still, Iguamish has failed to meet this burden.

[00:35:19] Speaker 03:
as a district court order complies with the panel's direction, specifically regarding the evidence it relied upon throughout its findings.

[00:35:28] Speaker 03:
As to the evidence regarding village sites, Ms.

[00:35:30] Speaker 03:
Haley recited how the district court in paragraph 10, subparagraphs A through I, properly considered and evaluated the evidence presented.

[00:35:40] Speaker 03:
I would like to amplify his findings as the 1975 Barbara Lane letter,

[00:35:45] Speaker 03:
Quote, Ultimately, the words in this letter are no more than speculative whispers from 50 years ago.

[00:35:52] Speaker 03:
Judge Martinez did the work requested by the Ninth Circuit.

[00:35:56] Speaker 03:
As the fact finder, he considered all of the evidence when issuing his reformed order.

[00:36:02] Speaker 03:
Still, Guamish ignores entirely the prior panel's limited order.

[00:36:07] Speaker 03:
It erroneously continues to challenge whether the district court applied the correct law of the case.

[00:36:13] Speaker 03:
But the Ninth Circuit unequivocally rejected the assignment of error in Stila Gwamish's first appeal, holding, we conclude, the District Court applied the proper law of the case.

[00:36:26] Speaker 03:
Stila Gwamish also asked that this Court not only reverse the District Court's amended order, but to decide as a matter of law, without any citations,

[00:36:36] Speaker 03:
and under a de novo standard of review, that Stillaguamish affirmatively has UNA in the claimed waters.

[00:36:45] Speaker 03:
That's not relief available to Stillaguamish, even if the Court were to find in its favor.

[00:36:51] Speaker 03:
First, the only issue before this panel is whether the evidence the District Court relied upon warranted granting uppers Gadget's motion.

[00:36:59] Speaker 02:
Counsel, if we disagree with your position on that, what is the remedy that you think would be appropriate?

[00:37:10] Speaker 03:
Can you clarify your question?

[00:37:12] Speaker 02:
If we were to conclude either that the district court made a new error of law not related to what we blessed the first time or that one or more findings are clearly erroneous, what is the proper remedy?

[00:37:26] Speaker 02:
I know you don't agree that that occurred.

[00:37:28] Speaker 02:
I'm asking what would be.

[00:37:32] Speaker 03:
Understood your honor.

[00:37:32] Speaker 03:
I think there are two remedies available to this court you could remand for further consideration of the 52c motion and more findings or you could remand and instruct the Judge Martinez to Consider the entire record in regards to the requests for relief that still aquamers provided in their underlying complaint Council I assume that

[00:37:53] Speaker 06:
Your position would also be that if we found some factual error that the judge made in this Rule 52 proceeding that we'd have to find in order to reverse that it was harmful error, not just error, yes.

[00:38:08] Speaker 03:
A clear error is not harmful, Your Honor.

[00:38:11] Speaker 03:
It's the three points that I provided earlier.

[00:38:14] Speaker 03:
Implausible,

[00:38:16] Speaker 03:
illogical or without support from the inferences that may be found in the record.

[00:38:23] Speaker 03:
So it's not about harm, it's about those three components and whether or not you agree with it as I stated previously, that's not the issue.

[00:38:31] Speaker 03:
The issue is whether or not a reasonable person and those three components of the tests have been met.

[00:38:37] Speaker 06:
But it would depend

[00:38:38] Speaker 06:
I think, on what the error is.

[00:38:43] Speaker 06:
If the district court, for example, said that somebody promised an opening statement that they were going to put something in evidence, and then they never did, and that were just factually wrong, even if we were to find that it was factually wrong, in order to do something about it, we'd have to find that it made a difference, right?

[00:39:05] Speaker 03:
Oh, I think that's a fair statement, Your Honor, yes.

[00:39:10] Speaker 03:
So to go back to what Stillaguamish is asking this court to do here, which is truly remarkable, they had no motion pending before the trial court before this appeal.

[00:39:23] Speaker 03:
It never filed a motion.

[00:39:25] Speaker 03:
It didn't file a 52C or 52C motion of its own, and yet it's asking this court to take an affirmative step for which they have not procedurally made any complaint to accomplish.

[00:39:39] Speaker 03:
Second, and equally lacking any support in the records, Stillaguamers asked this court to massively expand its UNA on a limited record submitted to this panel and ignore the extensive trial record that Upper Skagit and other tribes developed that demonstrates Stillaguamers has no evidence of actual fishing in the claimed waters.

[00:39:58] Speaker 03:
This panel was not the fact-finder at trial, cannot step into the district court's shoes, and cannot make a factual decision regarding whether Stillaguamish has proved its UNA based upon a partial record.

[00:40:11] Speaker 05:
What's the practical impact?

[00:40:13] Speaker 05:
As I mentioned before, this isn't the first time I've been to this party, and a lot of different groups have serious interests.

[00:40:22] Speaker 05:
A lot of money and time and effort have been expended on this over the past

[00:40:27] Speaker 05:
Indeed, now more than 50 years.

[00:40:32] Speaker 05:
Why?

[00:40:33] Speaker 05:
What is really at stake here?

[00:40:36] Speaker 05:
Let's just take this illustration.

[00:40:38] Speaker 05:
Suppose the Stella Squamish ultimately prevail, and I understand your argument about how they can't get to the result they seek through this particular appeal.

[00:40:49] Speaker 05:
But let's look at the big picture.

[00:40:50] Speaker 05:
Suppose they ultimately prevail.

[00:40:52] Speaker 05:
What happens?

[00:40:53] Speaker 05:
What changes?

[00:40:54] Speaker 05:
What's the impact on them and on everybody else?

[00:40:57] Speaker 03:
So, Your Honor, for Upper Skagit, its UNA is a very limited UNA.

[00:41:02] Speaker 03:
All of the waters that Siligwam is seeking to come into constitutes pretty much the entirety of Upper Skagit's UNA.

[00:41:09] Speaker 03:
The fleet size that they would introduce, I can't speak to, but any incursion into that UNA will dramatically affect the take that Upper Skagit has available to its fishers.

[00:41:17] Speaker 03:
The same for Swindon, it's the same for Tulalip.

[00:41:20] Speaker 03:
So it's not a small impact that's going to occur on the tribes.

[00:41:25] Speaker 03:
Fundamentally, it limits the most important component of the adjudicated treaty right, upper Skagit's ability to take fish from its usual and custom grounds and stations where it has litigated and established its UNA.

[00:41:38] Speaker 05:
And on that point... It explains why we have the opposition from

[00:41:42] Speaker 03:
your client and the several others.

[00:41:43] Speaker 03:
It's absolutely right.

[00:41:44] Speaker 03:
It's fundamental.

[00:41:45] Speaker 03:
And it's more than just fishing, Your Honor.

[00:41:49] Speaker 03:
It's the identity of who they are.

[00:41:52] Speaker 03:
Where you fish, your village sites, the tribe's locations, the incursion into those territories, it's an attack on their identity as well.

[00:42:01] Speaker 03:
If I may, there's been talk about, you know, Siligwamish having to meet a burden that no other tribe has had to meet here as relates to villages and relates to having fishing associated with villages.

[00:42:13] Speaker 03:
Upper Skagit is the only tribe, the only riverine tribe that has established marine water UNA, expanded from its original Final Decision I decision.

[00:42:24] Speaker 03:
They did that by specific examples of fishing at specific locations.

[00:42:29] Speaker 03:
I'd like to provide you with a few examples.

[00:42:32] Speaker 03:
For Saratoga passage, this is exhibit UPS 31 at page 20 from the Omsman report.

[00:42:40] Speaker 03:
Quote, fish were caught and dried here and land hunting was carried out at this site.

[00:42:46] Speaker 03:
Mussels were collected and clams were dug.

[00:42:49] Speaker 03:
The upper Skagit came here to get clams.

[00:42:52] Speaker 03:
Specific conduct of fishing at a specific location.

[00:42:56] Speaker 05:
The upper Skagit... You contrast that with the evidence you say was not offered.

[00:43:01] Speaker 05:
Let me take one step further.

[00:43:07] Speaker 05:
The panel of our court that dealt with this case previously, two of the judges, one judge authored a concurring opinion, another judge

[00:43:21] Speaker 05:
joined in that, the third judge said not so fast, pointing to is there another way to go about doing this, because it is unusual to have a judicial proceeding that's gone as this one has.

[00:43:35] Speaker 05:
My question is not a direction.

[00:43:39] Speaker 05:
The prior panel's suggestion that perhaps starting in the district court, some attempt should be made to address whether there's a different way to resolve

[00:43:49] Speaker 05:
this other than having what I confess as a lawyer, I used to appreciate a full employment act because a lot of lawyers are kept busy by this.

[00:43:57] Speaker 05:
Has there been any effort in the district court to see if a different way or perhaps through the state legislature?

[00:44:03] Speaker 05:
Well, that can't be the state.

[00:44:05] Speaker 05:
That's the problem.

[00:44:06] Speaker 05:
In this district court, to see if there's a different process whereby some of these claims can be resolved without requiring

[00:44:15] Speaker 05:
referral back to a now 51-year-old judicial decree.

[00:44:19] Speaker 03:
Your Honor, as I stated at the previous oral argument, the question as to whether or not the jurisdiction should continue under paragraph 25 from Upper Skagit's perspective is undoubtedly it should.

[00:44:32] Speaker 03:
As long as the treaties are in effect and as long as there's resources related to those treaties, paragraph 25 must stay in place giving jurisdiction to the tribe and the state to come before the courts to resolve these matters.

[00:44:46] Speaker 03:
That said, there have been efforts initiated by tribes, amongst the tribes, to do alternative dispute resolutions.

[00:44:55] Speaker 03:
There have been, you know, talks amongst leadership and tribal attorneys in terms of how can we address things internally, but ultimately, we've always had to come back before the court to resolve issues of UNA.

[00:45:10] Speaker 03:
It's just the nature of what's being sought and the significance of the relief here.

[00:45:16] Speaker 05:
The stakes are substantial, and I appreciate that.

[00:45:20] Speaker 03:
Thank you, Your Honor.

[00:45:22] Speaker 03:
I would like to just finish with one statement because it's fairly important, and it gives you some of the context of what you're referring to, Your Honor.

[00:45:36] Speaker 03:
It's the elder testimony of respected tribal elder, Ms.

[00:45:39] Speaker 03:
Dover, from 1975, exhibit UT 17, page 14, lines 8 through 17.

[00:45:47] Speaker 03:
She stated, we wouldn't dream of going up, like you know, to Siligwamish River.

[00:45:54] Speaker 03:
That belongs to those people.

[00:45:57] Speaker 03:
And would they come down to your place?

[00:45:59] Speaker 03:
They come to visit.

[00:46:01] Speaker 03:
But did they come to roam about and live and hunt and fish and gather berries in your areas?

[00:46:07] Speaker 03:
You mean which?

[00:46:09] Speaker 03:
Any of the tribes?

[00:46:11] Speaker 03:
No.

[00:46:12] Speaker 03:
They didn't have to.

[00:46:14] Speaker 03:
They had riches galore.

[00:46:18] Speaker 03:
Stillaguamish did not fish in the waters at issue at and before treaty time in a usual and a custom way because they had riches galore in the Stillaguamish River basin.

[00:46:29] Speaker 03:
Judge Martinez got it right.

[00:46:32] Speaker 03:
This panel should affirm the district court's amended order under the clear air standard.

[00:46:38] Speaker 03:
Thank you, your honor.

[00:46:38] Speaker 03:
All right, thank you.

[00:46:39] Speaker 06:
And counsel, as I said, you have five minutes for your rebuttal.

[00:46:50] Speaker 01:
Thank you, your honor.

[00:46:50] Speaker 01:
I appreciate the time.

[00:46:51] Speaker 02:
Do you mind phrasing that a little bit?

[00:47:01] Speaker 02:
Thank you.

[00:47:01] Speaker 02:
How's that?

[00:47:02] Speaker 01:
Is that better?

[00:47:02] Speaker 02:
It's easier to hear you.

[00:47:03] Speaker 02:
Thanks.

[00:47:06] Speaker 01:
Your honor, let's start with the language of the amended order.

[00:47:11] Speaker 01:
What I heard my colleagues say was that

[00:47:15] Speaker 01:
What Judge Martinez had a problem with was Dr. Friday's speculation, what the court determined was speculation.

[00:47:23] Speaker 01:
But that's not what the district court said.

[00:47:26] Speaker 01:
I'm on page 10 of the amended order, and Judge Martinez states, critically for this order,

[00:47:32] Speaker 01:
All of Stillaguamish's testimony and exhibits are speculative as to the question of fishing in the claimed waters.

[00:47:44] Speaker 01:
That statement is erroneous because that means what we're talking about, I believe there are over 340 exhibits that were admitted at trial.

[00:47:53] Speaker 01:
So what Judge Martinez is saying there is that prior testimony, which the prior panel of this court recognized that experts are allowed to build off the work of others that came before it, so that the reports of Dr. Lane that were previously admitted, the testimony of Dr. Lane previously admitted, the testimony of Dr. Riley and others previously admitted, tribal elder testimony previously admitted, all of that is speculation?

[00:48:20] Speaker 05:
That's not right.

[00:48:23] Speaker 05:
evidence of actual marine fishing as distinguished from, and maybe the quarrels with the word speculative, I understand that to mean requiring inferences.

[00:48:35] Speaker 05:
It must have happened because there is evidence of X, such as villages, proximity.

[00:48:43] Speaker 05:
Indeed, the next sentence says, for example, expert testimony was presented indicating a prior expert witness felt that fishing

[00:48:51] Speaker 05:
must have happened, and must is in italics, must have happened because of proximity.

[00:48:57] Speaker 05:
He is acknowledging that.

[00:48:59] Speaker 05:
He's drawing a distinction between the inferential conclusion that fishing must have happened and actual evidence of fishing.

[00:49:09] Speaker 05:
Now, this evidence you're referring to, was any of it the actual evidence of fishing that the district court concluded was missing?

[00:49:17] Speaker 01:
Yes.

[00:49:17] Speaker 05:
What was that?

[00:49:19] Speaker 01:
But let me also say first, that actual fishing evidence has never been the standard in this case.

[00:49:23] Speaker 01:
But was there proof of actual fishing?

[00:49:25] Speaker 05:
Well, that's a whole other issue, but OK.

[00:49:27] Speaker 01:
But was there proof of actual fishing?

[00:49:29] Speaker 01:
So yes, right?

[00:49:30] Speaker 01:
I read you two examples previously, right?

[00:49:32] Speaker 01:
That was Dr. Snyder's testimony that Port Susan was fished by Stillaguamish, Dr. Riley, who said that Stillaguamish,

[00:49:43] Speaker 01:
who did hunt upriver, no one denies that they had upriver villages, came down to Port Susan to clam and fish.

[00:49:52] Speaker 01:
That's evidence of actual fishing.

[00:49:55] Speaker 01:
In another location that we haven't talked about, Holmes Harbor, there was a field note from an anthropologist which described a Stillaguamish man whose name was Mohit Sam actually fishing in those waters at treaty times.

[00:50:10] Speaker 01:
So those are just some of the examples where there was evidence in the record that the district court said was speculative.

[00:50:17] Speaker 01:
that shows that there were still a Guamish people fishing in the claimed waters.

[00:50:24] Speaker 01:
I think the other point to make here is that, and it's a point that the Amicus Scallallum tribes made really well, and it dovetails off of what Mr. Hawkins just said, and that is it just defies logic to have tribes with villages on the salt water to not also find that the tribal members living in those villages would have used

[00:50:50] Speaker 01:
those waters.

[00:50:51] Speaker 01:
The district court has previously acknowledged, I think it was finding in fact 367, the district court said of course at treaty times when tribal people went out for fresh food, they used the waters in closest proximity to their villages.

[00:51:06] Speaker 01:
And again, the evidence before the district court showed that there was village and presence evidence for Port Susan, Skagit Bay, and along the shores of Kameno Island.

[00:51:18] Speaker 01:
So all of those inferences can be drawn based on the body of law in this case.

[00:51:23] Speaker 01:
That says that those Stillaguamish people would have used those resources.

[00:51:27] Speaker 01:
What Upper Skagit tries to do is other Stillaguamish, saying that Stillaguamish alone would have stayed up on their river and would not have used these saltwater resources.

[00:51:37] Speaker 01:
But that simply does not reflect the reality of 1855 or the reality of the law of the case and how the district court has judiciously reviewed what is, in its own words, evidence that is fragmentary and happenstance

[00:51:53] Speaker 01:
to find that tribes have usual and accustomed fishing areas.

[00:51:57] Speaker 01:
We do ask this court to review the record de novo.

[00:52:00] Speaker 01:
There are mixed questions of law and fact.

[00:52:02] Speaker 01:
Law questions predominate and find that Siligwamish did fish the claimed waters at and before treaty times.

[00:52:09] Speaker 01:
Thank you, Your Honors.

[00:52:09] Speaker 06:
We thank counsel for their arguments.

[00:52:11] Speaker 06:
The case just argued is submitted.

[00:52:13] Speaker 06:
We'll move