United States v. Washington

Opinion by Judge LEAVY; Concurrence by Judge KOZINSKI.

LEAVY, Circuit Judge:

In 1979, United States District Judge George H. Boldt ruled that five Northwest Indian tribes had no treaty fishing rights. In 1993, three of these tribes, the Duwamish, Snohomish, and Steilacoom Tribes (“the Three Tribes”), petitioned the United States District Court for Western Washington for relief from the 1979 judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) on the ground that Judge Boldt may have suffered from Alzheimer’s disease in 1979. The United States, the State of Washington, and most tribes with treaty fishing rights1 opposed the Three Tribes’ motion. On January 23, 1995, the district court denied the motion and the Three Tribes timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

FACTS AND PRIOR PROCEEDINGS

In 1970, the United States in its capacity as trustee for seven Indian tribes brought this action against the State of Washington to enforce the Stevens Treaties, which con*1161cern Indian fishing rights.2 Seven other tribes intervened as plaintiffs. In 1974, Judge Boldt ruled that all fourteen tribes had treaty fishing rights which entitled them to take up to fifty percent of the harvestable fish passing through their off-reservation fishing grounds. United States v. Washington, 384 F.Supp. 312.3

After Judge Boldt’s 1974 decision, five additional tribes moved to intervene as plaintiffs in United States v. Washington: the Duwamish, Snohomish, Steilaeoom, Snoqual-mie, and Samish (“the Five Tribes”). On September 18, 1974, Judge Boldt referred the issue of the treaty status of these Five Tribes to Magistrate Judge Robert E. Cooper. Magistrate Judge Cooper held hearings and received evidence on whether the Five Tribes had treaty fishing rights. On March 5, 1975, Magistrate Judge Cooper issued a Report finding that none of the Five Tribes had maintained their political cohesion, and thus recommending a conclusion of law that none had rights under the Stevens Treaties. After appeal by the Five Tribes from the magistrate judge’s report, Judge Boldt held a three-day de novo evidentiary hearing later in 1975, directed the parties to submit additional evidence in 1976, and heard oral argument in 1977.

In February 1978, before issuing a decision, Judge Boldt underwent surgery for an aortic aneurysm. By letter dated July 25, 1978, Judge Boldt informed all counsel involved in the pending ease that, although he was making “very good progress” in recovering from surgery, he was not fully recovered. He stated his intent to rule on the status of the Five Tribes within the next several months.

However, on February 7, 1979, Judge Boldt notified all counsel that, in light of his health, he had asked then Chief Judge Walter T. McGovern to remove him from the case. The Samish, Snoqualmie, Snohomish, and Steilaeoom tribes filed a motion on February 15, 1979, in which they requested that Judge Boldt decide whether they qualified as treaty tribes with respect to fishing rights. In an order dated March 14, 1979, Chief Judge McGovern granted the tribes’ motion on the grounds that it was “in the best interests of judicial administration and economy, and in the interest of all parties.” In a footnote, Judge McGovern stated that “[t]he *1162court has been informed that Judge Boldt is willing, if requested, to consider and issue a ruling on this matter.”

Nine days later, on March 23, 1979, Judge Boldt ruled that the Five Tribes had no rights under the Stevens Treaties. United States v. Washington, 476 F.Supp. 1101 (W.D.Wash.1979), aff'd, 641 F.2d 1368 (9th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). In doing so he adopted with minor changes the proposed findings of fact and conclusions of law submitted by the United States. On April 25, 1979, Judge Boldt denied the tribes’ motion for reconsideration.

The Five Tribes appealed to this court, which, in a split decision, affirmed Judge Boldt. 641 F.2d at 1374. Because Judge Boldt adopted the proposed findings of the United States, his decision was given “close scrutiny.” Id. at 1371. This court concluded that Judge Boldt had applied an incorrect legal test (i.e., that federal recognition or nonrecognition was decisive) to determine whether a tribe had treaty rights. The proper inquiry was whether a “group of Indian descendants ... have maintained an organized tribal structure.” Id. at 1372. Applying the correct test directly to the record, this court concluded “[a]fter close scrutiny, ... that the evidence supported [Judge Boldt’s] finding of fact” that the tribes had not functioned since treaty times as “continuous separate, distinct and cohesive Indian cultural or political eommunit[ies].” Id. at 1373. This count affirmed Judge Boldt because “the district court correctly resolved this question despite its failure to apply the proper standard.” Id. at 1374.

The United States Supreme Court subsequently denied the tribes’ petition for certiorari. 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982).

Judge Boldt died in 1984.

On June 11, 1992, the Seattle Posh-Intelli-gencer published a front-page article, “Alzheimer’s Strikes Indians Through Judge,” which reported that, at the time of his 1979 ruling, Judge Boldt suffered from Alzheimer’s disease. Paul Shukovsky, Alzheimer’s Strikes Indians Through Judge, Seattle Post-Intelligencer, June 11, 1992, at Al, A6. The article was based, in part, on Judge Boldt’s death certificate which lists pneumonia as the immediate cause of death and Alzheimer’s disease as a secondary cause. According to the death certificate, the Alzheimer’s set in during 1978. In the newspaper article, Judge Boldt’s son is quoted concerning his father’s medical condition:

“He was so bright, so sharp, so articulate all his life until February of 1978,” his son said. “He was a different man after-wards. He went into a state of deterioration. He went into a six year decline” that ended with his death in 1984.
“He started to develop a lot of the symptoms of Alzheimer’s and continued to have them,” his son said.

Judge Boldt’s son also stated in the article that he believed his father to have been mentally competent when he ruled against the tribes in 1979: “He loved the law.” “He would not do anything to violate his duties as a judge.”

On November 22, 1993, the Three Tribes filed a motion in the United States District Court for Western Washington for relief from Judge Boldt’s 1979 judgment pursuant to Rule 60(b)(6). At oral argument on the motion, held on November 11, 1994, almost a year after the motion was filed, the Three Tribes argued that their motion was for the limited purpose of conducting discovery into the state of Judge Boldt’s mental health at the time he rendered his 1979 decision. The record does not indicate that the Three Tribes moved for discovery during oral argument or in the year that elapsed between the time they filed their Rule 60(b)(6) motion and their oral argument.

On January 23, 1995, Judge Barbara J. Rothstein, without deciding whether the broad language of Rule 60(b)(6) provided a remedy in case of a judge’s disability, denied the Three Tribes’ motion. The district court noted that 15 year's had passed since Judge Boldt’s decision, but “decline[d] to deny the tribes’ motion on this ground alone.” Instead, the court rested its denial on three foundations. First, courts should avoid disturbing the public interest in the finality of judgments. Second, a ruling for the Three *1163Tribes would open the floodgates to future challenges to judgments on grounds of judicial incompetence. Third, the Three Tribes suffered no “manifest injustice” because the magistrate judge and the Ninth Circuit reached the same conclusion as Judge Boldt. The district court concluded that “the moving tribes have failed to demonstrate the existence of any extraordinary circumstances which would warrant reopening the final order of March 23, 1979 for the purpose of conducting discovery into Judge Boldt’s mental health. Their [60(b)(6) ] motion is accordingly denied.” The Three Tribes timely appeal.

STANDARD OF REVIEW

This court reviews a district court’s denial of a Rule 60(b) motion for an abuse of discretion. In re Roxford Foods, Inc., 12 F.3d 875, 879 (9th Cir.1993). Under the abuse of discretion standard, a reviewing court may not reverse unless it has a “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors. A district court may abuse its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact.” Kayes v. Pacific Lumber Co., 51 F.3d 1449, 1464 (9th Cir.) (quotations and citations omitted), cert. denied, — U.S. —, 116 S.Ct. 301, 133 L.Ed.2d 206 (1995).

ANALYSIS

Rule 60(b) provides in relevant part: “On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b)(6).

[Rule 60(b)(6)] does not particularize the factors that justify relief, but we have previously noted that it provides courts with authority “adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice,” Klapprott v. United States, 335 U.S. 601, 614— 15, 69 S.Ct. 384, 390, 93 L.Ed. 266 (1949), while also cautioning that it should only be applied in “extraordinary circumstances,” Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950). Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64, 108 S.Ct. 2194, 2204, 100 L.Ed.2d 855 (1988).

Following the admonitions of the Supreme Court, we have used Rule 60(b)(6) “sparingly as an equitable remedy to prevent manifest injustice.” United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.), cert. denied, 510 U.S. 813, 114 S.Ct. 60, 126 L.Ed.2d 29 (1993). “The rule is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment.” Id.

The Three Tribes argue that 60(b)(6) relief should be granted and discovery allowed because of the possibility that they were denied a competent fact-finder when their treaty status was decided by Judge Boldt. This is not one of those rare cases where “extraordinary circumstances” warrant vacating an “erroneous judgment.” The Three Tribes offer only Judge Boldt’s death certificate and the Seattle Posb-Intelligencer Article to support their contention that Judge Boldt may have suffered some mental impairment in 1979. The death certificate states that Judge Boldt was diagnosed with Alzheimer’s sometime in 1978. In the newspaper article Judge Boldt’s son says that his father was a changed man after his 1978 surgery, but that he was mentally competent when he decided the tribes’ treaty status. The correspondence from Judge Boldt shows that the judge knew his surgery had physically weakened him and that he also knew of his obligation to decide the tribes’ treaty status. When he felt unable to fulfill his commitment to decide the tribes’ status “within the next several months,” he asked Chief Judge McGovern to remove him from the ease. The tribes responded by requesting that Judge Boldt rule on their status before stepping down. Chief Judge McGovern allowed their motion and Judge Boldt ruled. We should not reopen a judgment ■under these circumstances. Moreover, this court, as well as a magistrate judge, closely examined the case and reached the same *1164conclusion as Judge Boldt. A decision on the issue of whether Rule 60(b)(6) gives the district court the power to correct a manifest injustice arising from a judge’s disability should await the extraordinary circumstances in which it might be presented. The district court did not abuse its discretion in denying the Three Tribes’ motion to reopen the judgment and allow discovery.

The district court’s denial of the Three Tribes’ motion is AFFIRMED.

. The Lummi won fishing rights in 1974, United States v. Washington, 384 F.Supp. 312, 327 n. 2 (W.D.Wash.1974), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), but they took no position in the case at bar.

. The treaties are named for Isaac I. Stevens, the Governor of the Washington Territory, who negotiated eleven treaties on behalf of the United States with several Indian tribes in 1854 and 1855.

. There was great resistance to Judge Boldt’s decision and, consequently, enormous demands on the district court:

"The state [of Washington]'s extraordinary machinations in resisting the decree have forced the district court to take over a large share of the management of the state’s fishery in order to enforce its decrees. Except for some desegregation cases, the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century." Puget Sound Gillnetters Ass’n v. United States Dist. Court, 573 F.2d 1123, 1126 (9th Cir.1978) (citations omitted), aff'd in part and vacated in part, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). The issue of what, if any, right Indians had to fish under the Stevens Treaties ultimately reached the Supreme Court in 1979. This was only after the Washington State Supreme Court enjoined the Washington State Department of Fisheries from adopting fishing regulations to protect the Indians’ treaty rights. Puget Sound Gillnetters Ass’n v. Moos, 88 Wash.2d 677, 565 P.2d 1151 (1977); Washington State Commercial Passenger Fishing Vessel Ass’n v. Tollefson, 89 Wash.2d 276, 571 P.2d 1373 (1977), vacated and remanded, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). The Supreme Court affirmed Judge Boldt's reading of the Stevens Treaties. 443 U.S. at 685, 99 S.Ct. at 3074. Indeed, Judge Boldt's 1974 decision has become an integral part of natural resource management in the northwest. State governments follow it when crafting fish management plans. See United States v. Washington, 626 F.Supp. 1405, 1527 (W.D.Wash.1985) (approving the 1985 Puget Sound Management Plan); United States v. Oregon, 913 F.2d 576 (9th Cir.1990) (approving the Columbia River Fish Management Plan), cert. denied, 501 U.S. 1250, 111 S.Ct. 2889, 115 L.Ed.2d 1054 (1991). So does the federal government. See 60 Fed.Reg. 21746, 21750 (May 3, 1995) (salmon fisheries regulations concerning the treaty tribes). Judge Boldt’s 1974 decision even affects international agreements. See Confederated Tribes & Bands of Yakima Indian Nation v. Baldrige, 605 F.Supp. 833 (W.D.Wash.1985) (approving stipulations regarding the United States-Canada Pacific Salmon Treaty); 16 U.S.C. § 3632 (creating a tribal seat on the International Pacific Salmon Commission); 50 C.F.R. § 301.20 (International Pacific Halibut Commission regulations concerning the treaty tribes).