On July 17, 2019, Skagit County Superior Court Judge Brian Stiles terminated felony cases against both Tulalip Indian fishermen Hazen Shopbell and Anthony Paul after Washington State Department of Fish and Wildlife (WDFW) violated their constitutional rights by seizing and destroying over a thousand pounds of Treaty harvested bait clams without a search warrant. Skagit County immediately appealed the decision to the Washington Court of Appeals.
“These cases are the very latest political crusade by Washington State Department of Fish and Wildlife and Attorney General Bob Ferguson against Indian Treaty fishing and commerce rights,” said Shopbell’s counsel Gabriel Galanda. “Knowing better than to pick a federal court fight with the Tribes, the State pressures county prosecutors to charge tribal members with specious criminal charges.”
In companion cases, the Skagit County Prosecutor filed file felony counts against both Shopbell and Paul at the Washington State Department of Fish and Wildlife's request in June 2018, after the Washington State Department of Fish and Wildlife and Attorney General Ferguson’s Office unsuccessfully shopped the charges to prosecutors in King, Pierce, and Snohomish Counties.
During a June 18, 2019, hearing, Judge Stiles remarked: “It is troublesome to me about this issue of Fish and Wildlife shopping the prosecution.”
In that same hearing Judge Stiles granted Shopbell and Paul’s motion to suppress because the Washington State Department of Fish and Wildlife’s lead detective, Wendy Willette, illegally seized and destroyed four totes of shellfish bait owned by the men’s company Puget Sound Seafood Distributors.
The Judge found: “Detective Willette did not have a search warrant, subpoena or other form of compulsory process authorizing the seizure of the bait clams on August 22, 2016, nor did Washington State Department of Fish and Wildlife have a court order allowing the bait clams’ destruction….The Washington State Department of Fish and Wildlife 's destruction of the bait clams violated the Defendant’s constitutional right to access useful and exculpatory evidence.”
The Judge also considered Shopbell’s arguments that Skagit County’s prosecution violated the Point Elliott Treaty and landmark Boldt Decision, United States v. State of Wash., 384 F. Supp. 312, 333 (W.D. Wash. 1974).
Shopbell was accused only of causing his company to buy claims from another Tulalip Treaty fisherman, on the Tulalip Indian Reservation, for use as fishing bait by other Tulalip Treaty fishermen. Detective Willette admitted that those clams were harvested from within the Tulalip Tribes’ usual and accustomed fishing areas according to the Point Elliott Treaty.
Judge Stiles did not reach but “recognize[d]” Shopbell’s Indian Treaty rights defense.
The very next day, July 18, 2019, Skagit County appealed Judge Stiles’ rulings in favor of Shopbell and Paul, to Division One of the Washington State Court of Appeals.
"The appeal is a transparent ploy to avoid political embarrassment and to forestall the State's federal civil rights liability," continued Galanda.
In November 2018, Shopbell and Paul filed a federal civil rights lawsuit against Washington State Department of Fish and Wildlife and various Washington State Department of Fish and Wildlife officials and agents in U.S. District Court for the Western District of Washington, alleging that the Washington State Department of Fish and Wildlife “Defendants have levied a full-fledged assault against Plaintiffs under the guise of a ‘criminal investigation,’ when in fact Defendants' intent was, and remains, to attack Indian Treaty fishing and destroy intra-tribal and inter-tribal Treaty fish distribution and commerce.”
The federal civil rights case is set for trial before Judge Barbara Rothstein in October 2020. AG Ferguson's Office is also defending the federal court suit.
The Skagit County cases were not the first set of criminal charges filed against Shopbell or Paul as part of the Washington State Department of Fish and Wildlife and AG Ferguson’s increasing assault against Indian Treaty fishing rights.
In July 2018, the Pierce County Superior Court dismissed a related case against Paul and other Tulalip fishermen after the Pierce County Prosecutor Office’s “learned additional information” that the Washington State Department of Fish and Wildlife did not disclose to it before that prosecution was initiated. According to the Prosecutor’s Dismissal Memo: “we learned all defendants have a viable defense that we were not told about....This would be a complete defense in the case."