Puget Sound Gillnetters Ass'n v. Moos

Stafford, J.

(concurring with Justice Horowitz) — I concur with the opinion of Justice Horowitz. Th§. Puget Sound Gillnetters Association concession that " [wjhether or not the decision of the federal court [United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975)] was correct is no longer an issue" would appear to resolve the basic question before us on the writ of mandamus. However, I am compelled to comment further on Department of Game v. Puyallup Tribe, Inc., 86 Wn.2d 664 , 548 P.2d 1058 (1976) (.Puyallup III) for other reasons. As pointed out by the majority and dissenting opinions, Puyallup has now been before the United States Supreme Court on three occasions. At no time has the critical portion of the Treaty of Medicine Creek been interpreted so as to fully dispose of the fishing-right conflict caused by the phrase "in common with all citizens of the Territory." 10 Stat. 1133 .

As a result, conflicting interpretations have caused, the state and federal courts to drift into positions of direct *698 conflict. Unfortunately, this has become more than an exercise in legal theory, it has developed into a serious social and economic conflict of major proportions. I do not exaggerate when I say that all too frequently lives and property rights have already hung in the balance.

I cannot stress too strongly that in Puyallup III, now on review, the United States Supreme Court should refrain from a limited consideration of the issues. Rather, it should interpret the critical section of the treaty. Such an interpretation by the ultimate legal authority is the only way the current legal, economic and social conflict can be resolved. Most assuredly, this unresolved clash between federal and state judicial systems and between economic and social interests cannot be permitted to continue. Too much is at stake in all areas.

Horowitz, J., concurs with Stafford, J.

Reconsideration denied October 10, 1977.