# Department of Game v. Puyallup Tribe, Inc. > Washington Supreme Court · April 8, 1976 · 86 Wash. 2d 664 URL: https://www.frixlaw.com/law-library/cases/9595633 ## Case - **Full name:** The Department of Game, Et Al, Respondents, v. Puyallup Tribe, Inc., Et Al, Appellants - **Court:** Washington Supreme Court - **Decided:** April 8, 1976 - **Citations:** 86 Wash. 2d 664; 548 P.2d 1058; 1976 Wash. LEXIS 889 - **Precedential status:** Published - **Opinion:** Concurrence by Stafford - **Judges:** Stafford, Rosellini - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Vacated on other grounds by Puyallup Tribe, Inc. v. Department of Game of Washington, 433 U.S. 165 (1977). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9595633 ## How later opinions describe it (automated extraction) - declining to defer to the district court on the grounds of comity ## Opinion text Stafford, C.J. (concurring in the result) — I concur in the result reached by the majority as well as with the allocation of the steelhead trout run between the Indians and non-Indians. However, I reach the same result for different reasons. I have reviewed Puyallup Tribe v. Department of Game, 391 U.S. 392 , 20 L. Ed. 2d 689 , 88 S. Ct. 1725 (1967) (hereinafter called Puyallup I) and Department of Game v. Puyallup Tribe, 414 U.S. 44 , 38 L. Ed. 2d 254 , 94 S. Ct. 330 (1973) (hereinafter called Puyallup II). The totality of the facts in Department of Game v. Puyallup Tribe, Inc., 70 Wn.2d 245 , 422 P.2d 754 (1967) and Department of Game v. Puyallup Tribe, Inc., 80 Wn.2d 561 , 497 P.2d 171 (1972) when considered with Puyallup I and Puyallup II makes several things abundantly clear. (1) Substantially all of the steelhead trout fishery occurs after their entrance into the Puyallup River; (2) that the case is concerned with the Puyallup Indians’ use of setnets to catch steelhead in the Puyallup River; (3) that the only portion of the Puyallup River with which we are concerned *689 flows through the Puyallup Indian reservation; (4) that the present run of steelhead is made possible by the planting of steelhead; (5) that the planting program is financed in large part by the license fees paid by sports fishermen; and (6) that the central issue is the problem of accommodating the Puyallup Indians’ net fishing and the non-Indian sports fishing with the conservation needs of the fishery. It is equally clear the United States Supreme Court remanded the case for this state court to make a fair apportionment between Indian net fishing and non-Indian sports fishing under the above related circumstances. The majority has accomplished this in an equitable manner. I am convinced the Supreme Court did not direct this court to resolve the apportionment problem as an empty gesture. It is only logical to assume that once a formula resulting in fair distribution was achieved that the fair allocation should, insofar as possible, be maintained. If this assumption is not correct, then much of the language in Puyallup II is meaningless. At first blush it would appear that the State lacks the necessary power to enforce the equitable apportionment directed by the United States Supreme Court. In this regard see such cases as Menominee Tribe of Indians v. United States, 391 U.S. 404 , 20 L. Ed. 2d 697 , 88 S. Ct. 1705 (1968); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 , 8 L. Ed. 483 (1932); Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974); Moore v. United States, 157 F.2d 760 (9th Cir. 1946); see also Seufert Bros. Co. v. United States, 249 U.S. 194 , 63 L. Ed. 555 , 39 S. Ct. 203 (1919); and United States v. Winans, 198 U.S. 371 , 49 L. Ed. 1089 , 25 S. Ct. 662 (1905). On the other hand, it is only logical to assume the Supreme Court is equally aware of the above cited cases and had them in mind when the following broad language was used in Puyallup II at page 49: The aim is to accommodate the rights of Indians under the Treaty and the rights of other people. We do not imply that these fishing rights persist down to the very last steelhead in the river. Rights can be controlled by the need to conserve a species; and the *690 time may come when the life of a steelhead is so precarious in a particular stream that all fishing should be banned until the species regains assurance of survival. The police power of the State is adequate to prevent the steelhead from following the fate of the passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets. (Italics mine.) When one considers the fragile nature of the fishery involved, as well as the state’s physical and financial support of that resource, it is easy to understand the above quoted language. If the Supreme Court had not recognized the existence of a state power to control and supervise the mandated allocation, the Supreme Court’s direction would, for all practical purposes, be impossible to establish, implement, and enforce. Without question the Supreme Court did not intend to direct the State of Washington to perform a useless act. For this reason, I am willing to accept the above quoted portion of Puyallup II at face value and concur in the result reached by the majority. Wright, Utter, and Horowitz, JJ., concur with Stafford, C.J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9595633. Public record. Not legal advice.