Puget Sound Gillnetters Ass'n v. Moos

Horowitz, J.

(concurring in part; dissenting in part)— The petitions for writ of mandamus in the instant case seek an order compelling the Department of Fisheries of the State of Washington and its director to take action which is violative of the injunction entered in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975). Certiorari was denied by the Supreme Court of the United States, 423 U.S. 1086 , 47 L. Ed. 2d 97 , 96 S. Ct. 877 (1976).

The petitioners, inter alia, rely heavily on Department of Game v. Puyallup Tribe, Inc., 86 Wn.2d 664 , 548 P.2d 1058 (1976), for its interpretation of the treaty Indiap, fishing rights under the Treaty of Medicine Creek, 10 Stat. 1132 (1854). The petitioners recognize that "conflict already exists between this Court's opinion in Puyallup Three, 86 Wn.2d 664 and U.S. v. Washington, on both the issues of hatchery fish arid equal opportunity vs. equal fish." Reply Brief of Petitioners at 14.

Petitioners concede that ” [w]hether or not the decision of the federal court [United States v. Washington, supra] was correct is no longer an issue." Memorandum in Support of Petitioners' Application for a Writ of Mandamus at 7.

Petitioners contend, however, " [t]he only issue now • which must be passed upon is how is that judgment properly enforced and who is to bear the brunt and expense of enforcement of it." Memorandum in Support of Petitioners' Application for a Writ of Mandamus at 7. The difficulty with petitioners' quoted contention is that United States v. Washington, supra at 389-93, 399-412, 413-20, and particularly at page 416, held that the Department of Fisheries and its director had the authority and were indeed obligated under the supremacy clause to refrain from violating *694 the District Court injunction. Indeed, the defendants, including the Department of Fisheries and its director, are specifically ordered to "fully observe and to the best of their ability carry out the provisions and purposes of the treaties cited in paragraph 1 of the Findings of Fact," and "conform their regulatory action and enforcement to each and all of the standards set forth in Final Decision #1." United States v. Washington, supra at 414. This provision is now final in the federal court system and the Department of Fisheries and its director are bound by the injunction. Moreover, as United States v. Washington, supra at 402 states: "Because the right of each treaty tribe to take anadromous fish arises from a treaty with the United States, that right is reserved and protected under the supreme law of the land, does not depend on state law, is distinct from rights or privileges held by others, and may not be qualified by any action of the state."

Since the filing of the petition for the writ of mandamus, the Supreme Court of the United States has granted a writ of certiorari to review the decision in Department of Game v. Puyallup Tribe, Inc., supra, on which petitioners rely to define the treaty Indian fishing rights under the Treaty of Medicine Creek, supra, and this court has granted a rehearing in Washington State Commercial Passenger Fishing Vessel Ass’n v. Tollefson, 87 Wn.2d 417 , 553 P.2d 113 (1976), dealing with the powers and duties of the Department of Fisheries and its director in the management of the salmon fisheries of this state. That rehearing will be held in the May 1977 term.

The issues involved in the petition for certiorari which has been granted by the Supreme Court of the United States, have been the subject of briefs by various parties, including an amicus curiae brief filed on behalf of the United States at the invitation of the Supreme Court of the United States to enable the United States to express its views on the issues raised in the petition for certiorari. Whether, or to what extent, the forthcoming decision of the Supreme Court of the United States in the matter on which *695 it granted certiorari and the forthcoming decision of this court on the rehearing of Washington State Commercial Passenger Fishing Vessel Ass'n v. Tollefson, supra, will affect the outcome of the petition before this court, or a like petition should one be filed, remains to be seen.

Meanwhile, however, we must determine the effect we must give to the injunction issued in United States v. Washington, supra, which has now become final in the federal system.

There is no claim the injunction issued in United States v. Washington, supra, is void because of lack of jurisdiction of the parties and subject matter; nor is there any claim the Department of Fisheries or its director are not bound by that decision as parties to United States v. Washington, supra. The claim at most is that the United States District Court erred in ordering the Department of Fisheries and its director to comply with its decision and injunction, petitioners contending such compliance is beyond the authority of the Department of Fisheries and its director. As already pointed out, the United States District Court rejected this contention and the injunction is binding upon the Department of Fisheries and its director.

Accordingly, whether or not this court agrees with the decision in United States v. Washington, supra, is no longer the question. As already pointed out, petitioners admit the correctness of this decision "is no longer an issue." It follows that if the Department of Fisheries and its director refuse to obey the federal court injunction, they will be in contempt of the United States District Court and will be subject to sanctions for disobedience. 18 U.S.C. § 401 (1948). This court is powerless to prevent the imposition of those sanctions should the Department of Fisheries or the director violate the federal court injunction, whether or not pursuant to the order of this court.

Under the circumstances presented, if this court is to adhere to the rule that the office of a writ of mandate is to enforce a duty owing, rather than to direct its violation and if due regard is had to protect the integrity of the federal *696 and state constitutional structure of which this court is a part, then this court must deny the writ and I concur for the reasons stated. See People ex rel. Ammann v. Dipper, 392 Ill. 38, 44 , 63 N.E.2d 870 (1945); State ex rel. First Nat'l Bank v. Botkins, 141 Ohio St. 437 , 48 N.E.2d 865 , 148 A.L.R. 205 (1943); cf. State ex rel. Missouri Pac. Ry. v. Williams, 221 Mo. 227, 255-57 , 120 S.W. 740 (1909); Thomason v. Cooper, 254 F.2d 808, 810-11 (8th Cir. 1958).

A denial of the petition for writ of mandamus will suffice to dispose of this case. The majority opinion, however, after denying the writ, proceeds to determine the legal authority of the Department of Fisheries of the State of Washington and the Director of Fisheries to observe the Medicine Creek Treaty Indian fishing rights as construed in United States v. Washington, supra. They do so because, as it states: "We have full confidence that the director will abide by our decision." The majority opinion ultimately states:

We hold that the Director of Fisheries has the authority to pass regulations only for conservation purposes. We hold that he cannot allocate fish to any user of the same class, that every fisherman in a class must be treated equally, and that each should be given an equal opportunity to fish within lawful statutes and regulations.

That the interpretation of the Washington statutes is in conflict with United States v. Washington, supra, and particularly paragraph 14 of the injunction clearly appears from its text expressly at, e.g., pages 416, 402, and 414.

The effect of the majority's suggestion that the director abide by the majority's decision is to accomplish by indirection what the court has refused to authorize when it refused to grant the writ of mandamus. The injunction in United States v. Washington, supra, is expressly made binding upon the "State of Washington; Thor C. Tollefson, Director, Washington State Department of Fisheries; Carl Crouse, Director, Washington Department of Game . . . their agents, officers, employees, successors in interest..." United States v. Washington, supra at 414.

*697 The same reasons that prevent this court from issuing a writ of mandamus to the Department of Fisheries and its director, and his successors, apply to prevent the court from inviting the Director of Fisheries to accomplish the same result by undertaking to do those things on his own violative of the federal court injunction. I agree with the majority we must deny the writ of mandamus but I dissent from the suggestion of the majority that this court, in effect, invite the Department of Fisheries and its director to take action which would embroil them in contempt proceedings we are powerless to prevent. If the United States District Court, in response to the forthcoming decision of the Supreme Court of the United States in Department of Game v. Puyallup Tribe, Inc., 86 Wn.2d 664 , 548 P.2d 1058 (1976), or otherwise, withdraws or modifies its injunction, a different case will be presented.

Stafford and Utter, JJ., concur with Horowitz, J.