Petition — Washington v. Washington State Commercial Passenger Fishing Vessel Assn.
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~IN THE ae
SUPREME COURT ss.
OF THE
UNITED STATES
OCTOBER TERM, 1977
No. .s ow. om «
STATE OF WASHINGTON, WASHINGTON STATE De-
PARTMENT OF FISHERIES
. and Its DIRECTOR,
Petitioners.
VS,
WASHINGTON STATE COMMERCIAL PASSENGER FISHING
VESSEL
ASSOCIATION and WASHINGTON KELPERS
ASSOCIATION,
Respondents
STATE OF
PARTMENT
WASHINGTON,
WASHINGTON STATE DE-
OF FISHERIES
. and Its DIRECTOR.
Petitioners.
Vs,
PUGET SOUND GILLNETTERS ASSOCIATION, PHILIP
SUTHERLAND, PURSE SEINE VESSEL
OWNERS
ASSOCIATION and FRANK MARINKOVICH
Respondents
PETITION FOR WRIT OF CERTIORARI
TO THE WASHINGTON STATE
SUPREME COURT
SI. ADE GORTON
JAMES M. JOHNSON
IN THE
SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1977
STATE OF WASHINGTON, WASHINGTON STATE DkE-
PARTMENT OF FISHERIES, and Its DIRECTOR,
Petitioners,
VS.
WASHINGTON STATE COMMERCIAL PASSENGER FISHING
VESSEL ASSOCIATION and WaSHINGTON KELPERS
ASSOCIATION,
Respondents.
STATE OF WASHINGTON, WASHINGTON STATE DkE-
PARTMENT OF FISHERIES, and Its DIRECTOR.
Petitioners,
VS.
PuGET SOUND GILLNETTERS ASSOCIATION, PHILIP
SUTHERLAND, PuRsSE SEINE VESSEL OWNERS
ASSOCIATION and FRANK MARINKOVICH,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE WASHINGTON STATE
SURREME COURT
SLADE GORTON
Attorney General
JaMES M. JOHNSON
Sr. Asst. Attorney Genera
Counsel for Petitioners
Office and Post Office Address: 600 No. Capitol Way
Olympia, Washington 98504 (206) 753-2498
INDEX
EP FEITT SECRET TT TUTTE TET Te CTT Tee "9
EE ob sGhalaWenwiveleesneus eeuuseabs ees 2
QUESTIONS PRESENTED .............ccceescceees 3
CONSTITUTIONAL PROVISIONS, TREATIES,
ESE POMS TEEE oo osc crccvceseciccecoes: 4
CONSTITUTIONAL PROVISION
(1) CONSTITUTIONAL PROVISIONS OF THE
SE Cleo ScRG bs odawendes dope evs 4
(2) CONSTITUTIONAL PROVISIONS OF
SE GUE 06 chS 0s bcospeccascose 5
EE Nal G50 6 07S resend hoa cksoe 00 $004 Ks0%0a6eos 5
STATE OF WASHINGTON STATUTES ............ 6
STATEMENT OF THE FACTS
i <chis ccc chvebackeneeksceoepenehanénce 6
EELS CEE TEE Oe EEE TT TOE 6
(c) Regulation of the Fishery .................... 7
ee ED cdc i ccheteweccdeceseenees 8
REASONS FOR GRANTING THE WRIT ........... 12
Ee ee 21
ey Se 6 Sie cik cw hvebicnes vescacteces 23
TABLE OF AUTHORITIES
TABLE OF CASES
Blodgett v. Silbermann
277 U.S. 1, 72 L. Ed 749, 48 S. Ct. 410 (1928) ..... 16
Boynton v. Hutchinson Gas Co.
291 U.S. 656, 78 L. Ed. 1048, 54 S. Ct. 457 (1934) . 16
Coleman v. Miller
307 U.S. 433, 59 S. Ct. 972
OSB ©. TOA, BRINE ocnedacescvcocscvessudcncaum 16
Kelly v. Washington ex rel. Foss Co.
302 U.S. 1, 82 L. Ed. 3, 58 S. Ct. 87 (1937) ........ 16
Morehead v. New York ex rel. Tipaldo
298 U.S. 587, 80 L. Ed. 1347,
56 S. Ct. 918, 103 ALR 1445 (1936) .........ceeee. 16
Puget Sound Gillnetters Assn. v. Moos
88 Wn.2d 677, _— P.2d — (1977) ... 2,8, 10, 11, 12,
14, 15, 18, 19, 20
Puyallup Tribe v. Dept. of Game
__._ U.S, _... 83 L. Ed. 3 677,
OF ©, Co. GRE CERT a ccs scvecccestvanssunaeen 13
Rice v. Sioux City Cemetery
349 U.S. 70, 75 S. Ct. 614,
OD EL. Ge. Gre CHOD | cv ccccccvcsosuvesessuann 14
United States v. Washington
384 F. Supp. 312 (W.D. Wa. 1974) ..... 8, 9, 18, 19, 20
Washington Commercial Passenger Fishing
Vessel Assn. v. Tollefson
87 Wn.2d 417, 553 P.2d 113 (1977), upon
reconsideration, 89 Wn.2d 276, _._. P.2d —
CRSP 00ckscvcucecsdunummeeae 2,3, 9, 10, 11, 13, 18
iv
UNITED STATES STATUTES
10 Stat. 1132 (Treaty of Medicine Creek) ..........._; 5 iw:
12 Stat. 927 (Treaty of Point Elliott) ..............._ 5
12 Stat. 933 (Treaty of Point No Point) ............__ 5
12 Stat. 939 (Treaty with the Makahs—Treaty
es ivedeviesisccccces. SeeAhxmo% 5
12 Stat. 971 (Treaty with the Quinaults—Treatv of
el es 1 ie 5
12 Stat. 951 (Treaty with the Yakimas) ..........____ 5
WASHINGTON STATE STATUTES
rr 6
ee
TEXTS AND OTHER AUTHORITIES
United States Constitution
re 4
LR Rie reeaes 4
Amendment V. an oS ee rrr 4
ioc ceccnceocce.,... 4
coc cc ccc ccccoeces..,,.. 4
Washington State Constitution
SR 5
SSSR SRI SRSSRSRRREaEEE
United States Supreme Court Rules
3
Rule 19%a) 3 eas 12
eer nnenes 14
a
my ae
IN THE
SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1977
STATE OF WASHINGTON, WASHINGTON STATE De-
PARTMENT OF FISHERIES, and Its DiIREcTOR,
Petitioners,
VS.
WASHINGTON STATE COMMERCIAL PASSENGER FISHING
VESSEL ASSOCIATION and WASHINGTON KELPERS
ASSOCIATION,
Respondents.
STATE OF WASHINGTON, WASHINGTON STATE DE-
PARTMENT OF FISHERIES, and Its DIRECTOR,
Petitioners,
Vs.
PuGetT SounpD GILLNETTERS ASSOCIATION, PHILIP
SUTHERLAND, PuRSE SEINE VESSEL OWNERS
ASSOCIATION, and FRANK MARINKOVICH,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE WASHINGTON STATE
SUPREME COURT
Petitioners Washington State, Washington State
Department of Fisheries and the Director of that
Department, hereinafter jointly “Fisheries” or
“petitioners”, pray that a writ of certiorari issue to
review:
2
(1) The opinion and judgment of the Supreme
Court of Washington entered in Puget Sound
Gillnetters Assn. v. Moos, on denial of a motion for
rehearing on October 10, 1977.
(2) The opinion and judgment of the Supreme
Court of Washington in Washington Commercial
Passenger Fishing Vessel Assn. v. Tollefson entered
on 23 November, 1977, after reconsideration.
OPINIONS BELOW
The opinion of the Supreme Court of Washing-
ton in Puget Sound Gillnetters Assn. Uv. Moos,
hereinafter “Gillnetters”, (Appendix D) is reported
in 88 Wn.2d 677, P.2d — (1977).
The original opinion of the Supreme Court of
Washington in Washington State Commercial
Passenger Fishing Vessel Assn. v. Tollefson,
hereinafter “Fishing Vessel I’, (Appendix F) is
reported in 87 Wn.2d 417, 553 P.2d 113 (1977). A
motion for reconsideration was granted (Appendix
E). The decision upon reconsideration is found at 89
Wn.2d 276, P.2d (1977) hereinafter
“Fishing Vessel II”, (Appendix B). The judgment,
findings of fact and conclusions of law of the
Superior Court for Thurston County in the latter
action are unreported and appear in the Appendix
at G.
JURISDICTION
The judgment of the Supreme Court of
Washington in Puget Sound Gillnetters Assn. v.
3
Moos became final upon denial of a motion for
rehearing by a vote of five to three on October 10,
1977. The judgment of the Supreme Court of
Washington in Washington State Commercial
Passenger Fishing Vessel Assn. v. Tollefson became
final when its decision was rendered after rehearing
on 23 November 1977. The jurisdiction of this court
is invoked under 28 USC 1257(3). This single petition
is filed pursuant to Rule 23.5 of this Court in that
the cases involve identical or closely related
questions.
QUESTIONS PRESENTED
1. Do treaties executed by the United States
with certain Indian tribes in 1854-55 in the Territory
of Washington require state fishery management
agencies, in the absence of authorization under
state law, to restrict fishing by non-Indians in
order to provide a specified number or percentage
of fish to Indian descendents of the signatories to
the treaties?
2. Is the determination by the Washington
State Supreme Court that such allocation of fish
is beyond the authority of state agencies a matter
of state or federal law?
3. Can federal district court in interpreting
the treaty language “right to fish at usual and
accustomed grounds and stations in common with
all citizens” require that Indian fishermen be en-
titled to all fish they desire for subsistence and
ceremonial use, all fish harvested on reservation
plus 50% of the additional harvest and empower
4
or require state agencies, officers and employees
to effectuate such a division of the resource?
4. Does a special allocation of fish to treaty
Indians who are citizens of the United States and
a reduction in the available fishery for other United
States citizens constitute a violation of the consti-
tutional doctrine of equal protection and prohibition
of granting of special privileges and immunities.
CONSTITUTIONAL PROVISIONS, TREATIES,
STATUTES INVOLVED
Constitutional provisions, treaties and statutes
involved are as follows and are reproduced in
Appendix A, infra, pp. A-1 to A-9.
CONSTITUTIONAL PROVISIONS
Appendix
Page
(1) CONSTITUTIONAL PROVI-
SIONS OF THE UNITED STATES
4a) Article II, Section 2, Powers of
the President A-l
(Section 2 Clause 2) (Presidential
powers with the Advice and Consent of
the Senate to make Treaties).
(b) Article VI, Debts, Supremacy
Oath, #2, Supremacy. A-2
(c) Amendment V, Due Process. A-2-3
(d) Amendment X, Powers Re-
served to States or People. A-3
(e) Amendment XIV, Citizenship
rights not to be Abridged. A-3
5
(2) CONSTITUTIONAI. PROVI-
SIONS OF WASHINGTON STATE
(a) Article 1, Declaration of Rights
(Section 8, Irrevocable Privilege, Fran-
chise or Immunity Prohibited). A-4
(b) Articie I, Declaration of Rights
(Section 12, Special Privileges and
Immunities Prohibited) A-4
TREATIES
Six treaties were entered into by the United
States with various Indian tribes and banus living
in the State of Washington in 1854 and 1855. The
six treaties are:
Appendix
Page
(a) Treaty of Medicine Creek, 10
Stat. 1132. A-4
(b) Treaty of Point Elliott, 12 Stat.
927. A-5
(c) Treaty of Point No Point, 12
Stat. 933. A5
(d) Treaty with the Makahs (Trea-
ty of Neah Bay), 12 Stat. 939. A-5-6
(e) Treaty with the Quinaults
(Treaty of Olympia), 12 Stat. 971. A-6
(f) Treaty with the Yakimas, 12
Stat. 951. A-6-7
Those six treaties each contain a_ similar
provision, only that provision is repeated in the
appendix. The following is typical:
6
right of taking fish, at all usual and
peel aac and stations, 1s further
secured to said Indians, in common with all
citizens of the Territory, and of erecting
temporary houses for the purpose of curing
together with the privilege of hunting, gatherin
roots and berries, * * * on open an
unclaimed lands. Provided however, that they
shall not take shellfish from any beds staked or
cultivated by citizens.
STATE OF WASHINGTON STATUTES
(a) RCW 75.08.012, Duties of the [Fisheries]
Department. . A-7-8
(b) RCW 75.08.080 Rules and Regulations —
Scope. [Fisheries] A-8-9
STATEMENT OF THE FACTS
(a) Treaties. In the mid-1850's, the United
States entered into a series of treaties with Indians
in areas of what are now the States of Washington,
Oregon and Idaho. Each of these treaties provided
for continued fishing by those Indians in essentially
similar language: “the right of taking fish, at all usual
and accustomed grounds and stations, is further
secured to said Indians, in common with all citizens
of the Territory.” 10 Stat. 1132, Medicine Creek
Treaty. (Appendix A, p. A-4). .
At the time of the execution of these treaties,
the Indians were not citizens of the United
States. |
(b) The Fishery. At the time of the execution
of these treaties, commercial fishing enterprise was
7
either unknown or, in those areas in which such
activity had commenced, rudimentary and largely
unsuccessful. This is because the process for
preparing the fish for shipment to distant markets
was not perfected. The invention and perfection of
the canning process did not come until late in the
Nineteenth Century. With the advent of the canning
process commenced the development of large-scale
commercial fisheries which have been and now are
open to all citizens, Indian and non-Indian. The
resultant boom in commercial fishing brought the
need for state regulation to conserve the species and
provide for an orderly fishery.
This proceeding is concerned with the fishery for
anadromous fish. These fish spawn in either the fresh
water systoms or hatcheries of the State of
Washington. At a particular time of their life cycle,
they migrate out into the Pacific Ocean where they
feed for one or more years, then return to the areas
from which they originate to spawn. After spawning,
salmon die.
There are five species of salmon in the State of
Washington: chinook, coho, chum, pink and sockeye
salmon. The numbers caught each year vary. Total
commercial catch is in the millions of fish and annual
values (to the fishermen) in the tens of millions of
dollars. (In 1976, over 43 million dollars.)
(c) Regulation of the Fishery. In recognition of
an apparent decline in numbers of salmon in the
State of Washington resulting in part from the
increasing commercialization in the early part of the
8
Twentieth Century, legislation of that state created
an administrative agency with authority to regulate
and conserve the food fisheries resources. That
agency is the Department of Fisheries, petitioner
herein, headed by a Director with authority to
promulgate such regulations. (Game fish, such as
steelhead trout, are regulated by a different
agency.)
(d) The Court Conflict. The United States
District Court for the Western District of Washing-
ton rendered a decision on February 12, 1974,
interpreting the treaties in question here. L/nited
States v. Washington, 384 F.Supp. 312 (W.D. Wa.
1974). The federal district court held that the treaty
language quoted above p. 6 required the state (and
petitioner Fisheries) to exercise its regulatory police
powers to restrict nan-Indian fishermen in order to
provide treaty Indians 50 percent of all the
harvestable fish which would return to their usual
and accustomed areas if there were no other fisheries
plus (1) commercial harvest on reservation, (2)
harvest for personal consumption, and (3) harvest for
ceremonial purposes. These last three categories of
catch are not counted by the federal court. The court
did not allow nontreaty commercial and sport fishing
to participate as parties in the trial of that action.
(Purse Seine Vessel Owners Association, a plaintiff
in Puget Sound Gillnetters Assn. v. Moos, was
specifically rejected when they applied to intervene
in that action.)
Petitioners made good faith efforts to comply
9
with the district court's decision and subsequent
orders. The regulations as demanded by the court
were promulgated, i.e., restriction of the non-Indian
harvest to provide the required numbers of fish to
treaty Indians.
Non-Indian fishermen of the state challenged
the regulations in the courts of the State of
Washington The lower court of the State of
Washington and eventually the Washington State
Supreme Court in actions sought to be reviewed here
held that such regulations are unlawful and mav not
be promulgated by petitioner. This occurred in the
trial courts on several occasions despite the issuance
of injunctions by the federal district court which
purported to enjoin the state court proceedings. (See
€.g., Appendix. pp. H-14.) |
| The first of such regulations were promulgated
in 1974 shortly after the decision in United States
v, Washington. They were challenged in that vear
in the case Fishing Vesse/ Assn. v. Tollefson
(Appendix B). The Thurston County Superior
Court overturned those regulations, finding that thev
were beyond the Statutory authority of Fisheries
(petitioners herein). At this early stage, the argument
was advanced and rejected that the Supremacy
Clause required that states, their agencies and courts
in recognizing treaties as the supreme law of the land
must comply with federal court interpretation and
implementation of those treaties. That this was the
purpose of the challenged regulation is made clear
in the decision of the Washington State Supreme
10
Court in first considering the state’s appeal in the
Fishing Vessel Association (hereinafter Fishing
Vessel I) case: .
The Thurston County Superior Court found
as a fact that the regulations in question were
adopted solely as a result of the decision by the
federal district Judge George H. Boldt, ye
District of Washington at Tacoma, in Unite
States v. Washington.
Fishing Vessel Assn. I, supra, at 417, Appendix pp.
F-1-2.
By the time the Washington State Supreme
Court had an opportunity to consider the appeal, the
season to which the regulations would have pertained
was over. Though recognizing that:
. . . nd
uestions presented here are indeed serious a
ra a conflict between the state and federal
courts in this jurisdiction.
Fishing Vessel Assn. I, p. 419, Appendix p. F-3.
The Supreme Court of Washington dismissed
the case as moot.
Subsequently, a motion was filed by petitioners
asking the Washington Supreme Court to rehear the
case. It was granted.
Prior to the rehearing of that action, another
effort was made to get these same questions resolved.
An original action was filed in the Washington State
Supreme Court in Puget Sound Gillnetters Assn. v.
Moos asking a writ of mandamus/prohibition to order
Fisheries not to promulgate the regulations required
by the federal court. In that case, petitioners also
sought to raise each and every issue including
whether through the supremacy clause the federal
11
court interpretation of the treaties became binding
upon petitioners and the courts of the State of
Washington. Those and other constitutional issues
were considered as can be seen from the opinion of
that court, pp. 684-693, Appendix, pp. D-8-17.
In the latter action, petitioners requested the
participation of the United States Government and
the treaty tribes in order to assure all issues were
raised. The United States Department of Justice and
numerous tribes did participate amicus but declined
to ask party status.
The decision in Gillnetters was rendered 9 June
1977. (Appendix, pp. D-1) The court declined at that
time to issue a mandamus/prohibition writ.
After rehearing the Fishing Vessel case, the
Washington State Supreme Court rendered its
decision 23 November 1977. The United States and
tribes were also asked to participate in that action
but declined to do so.
On October 10, 1977, with the denial of a
petition for rehearing, the Gillnetters case became
final.
Subsequently, the fishing groups in Gillnetters
have renewed their request for a mandamus order
from the Washington State Supreme Court
contending in part the petitioners here have been or
will continue to comply with the federal district
court’s orders. A mandamus was issued on a
preliminary basis by the Chief Justice of the
Washington State Supreme Court. It is also presently
under consideration by the whole court.
12
As may be more fully seen from the decisions
(Appendix pp. D-8-7 and B-4-11), the Washington State
Supreme Court has held that regulation to comply
with the federal court orders and allocate over 50°
of the fish to Indians are beyond the statutory
authority of petitioner Fisheries and barred by the
constitutional prohibition against the granting of
special privileges and immunities and the constitu-
tional requirement of equal protection. Thus, such
regulations may not be enforced in the courts of the
State of Washington.
REASONS FOR GRANTING THE WRIT
Presently in the State of Washington there is
a direct confrontation between the state and fed-
eral court systems with directly conflicting decisions
and orders from those courts.’
The Washington State Supreme Court, in
holding unconstitutional implementation of the
federal court’s interpretation of the Indian treaties
because violative of the equal protection require-
ments of the Fourteenth Amendment, and
prohibitions against special privileges and immuni-
ties has decided a “federal question of substance not
theretofore determined” by the United States
Supreme Court. Supreme Court Rule 19(a) lists this
as an appropriate consideration in deciding whether
grant of a writ of certiorari is appropriate. |
This court has not considered the specific
; ; federal district court in a recent order: “Those
‘Note, e.g., finding of the federal district cour wrde
Bae eh iby the State Supreme Court] prevent defendants fron complying
with earlier decrees of this court.
13
allocation of the federal court previously (50° plus
reservation ceremonial and subsistence). The
Washington Supreme Court finds that particular
allocation constitutionally offensive:
the granting of more than 50 percent of the
harvestable fish to .028 percent of the population
(treaty Indians) and less than 50 percent to
2,243,069 non-Indian population, violates the
equal protection clause of the fourteenth
amendment to the United States
Constitution.
Fishing Vessel II, supra, 285-286, Appendix p. B-10-11.
This Court has, of course, previously considered
the treaty provision in question, most recently in
Puyallup Tribe v. Department of Game, __ US.
—, 53 L.Ed.2d 667, 97 S.Ct. 2616 (1977). In that
case an allocation of fish to treaty Indians was
approved. The fish were steelhead trout, a game fish
in Washington regulated by a different agency from
petitioners herein. The problem, however, in that
case was one of protecting the non-Indian share and
indeed the fish themselves from treaty Indians
asserting an exclusive right to them subject to no
controls. The result this Court approved, however,
is an allocation of fish to treaty Indians based on the
treaties in question.
As well as barring the allocation decreed by the
federal district court, the Washington Supreme
Court decisions may bar any allocation at all to
treaty Indians:
Indians are citizens of the United
States * * * they can neither be denied
equal protection of the laws nor granted special
14
privileges and immunities * * *
* * * [Fisheries] cannot allocate fish to any
user of the same class, every fisherman in a class
must be treated equally and each should be given
an equal opportunity to fish within lawful statutes
and regulations.
Gillnetters, supra, 684, 692693, Appendix pp. D8, 16-17.
To the extent the Washington Supreme Court
decisions bar any allocation, they may be considered
“probably not in accord with applicable decisions of
this Court”, alternative grounds for granting a writ
of certiorari under Rule 19-1(a) of this Court.
It is recognized that the Court will not review
a case where the problems are hypothetical or
speculative. Petitioners believe the problems here are
rather real and immediate falling within the meaning
of “special and important reasons” mentioned by
Court rule 19 for granting a writ of certiorari:
A federal question raised by a petition may be
“of substance” in the sense that, abstractly
considered, it may™~ present an_ intellectually
interesting and solid problem. But this Court
does not sit to satisfy a scholarly interest in such
issues. Nor does it sit for the benefit of the
particular litigants. (Magnum Imports Co. v.
Coty, 262 U.S. 159, 163; see also A dress of Mr.
Chief Justice Vinson, before the American Bar
Association, Sept. 7, 1949, 69 S.Ct. v, vi; Address
of Mr. Chief Justice Hughes, before the
American Law Institute, May 10, 1934, XI Proc.
Adm. Law Inst. 313.) “Special and important
reasons” imply a reach to a problem beyond the
academic or the episodic.
Rice v. Sioux City Cemetery, 349 U.S. 70, 74, 75 S.Ct.
614, 99 L.Ed. 897 (1955).
That the problem in the State of Washington is
15
beyond the academic and episodic is clearly
recognized by the Supreme Court of that state:
(T}his 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
balance.
(Stafford, concurring in part, dissenting in part in
Gillnetters, supra, at 698, Appendix p. D-22)
Severe and pressing problems of law enforce-
ment in the management of significant and
important salmon fisheries have been raised.
Confusion in law enforcement has frustrated efforts
to biologically manage the resource for orderly
harvest while assuring protection of fish runs.
Beyond these real management problems, the
Court should fully understand the situation of
petitioners.
The State of Washington and its Department of
Fisheries are in an unenviable position, caught
between conflicting decisions of the federal court and
state court systems.
Fisheries’ Director has been ordered to show
cause why he should not be held in contempt of court
— in both federal and state courts. (He has not yet
been judged in contempt, however.)
The State of Washington Department of
Fisheries and its Director have been prevented by the
state decisions from enforcing state laws and
regulations as ordered by the federal court. State
officials are seeking to enforce state laws but those
laws have been held violative of the federal
16
constitution by state courts. This court has
consistently granted review of these types of
important cases:
uestion of our authority to grant
Phy the application of state officers, to
review decisions of state courts declaring state
statutes, which these officers seek to oe,
be repugnant to the Federal Constitution, has
been carefully considered and our ee in
that class of cases has een
*
sustained * *
Coleman v. Miller, 307 U.S. 433, 442-444, 59 S.Ct.
972, 83 L.Ed 1385 (1938).
This Court there cited numerous examples of
prior cases in which such review was held
appropriate. They include: Blodgett v. Silbermann,
2977 U.S. 1, 72 L.Ed. 749, 48 S.Ct. 19 (1928)
(certiorari granted to Connecticut tax commissioner
where state supreme court held imposition of certain
taxes unlawful); Boynton v. Hutchinson Gas Co., 291
U.S. 656, 78 L.Ed. 1048, 54 S.Ct. 457 (1934)
(certiorari granted after argument to the Attorney
General of Kansas where that state’s supreme court
ruled a state statute unconstitutional under the
United States Constitution); Morehead v. New York
ex rel. Tipaldo, 298 U.S. 587, 80 L.Ed. 1347, 56 S.Ct.
918, 103 A.L.R. 1445 (1936) (certiorari granted to
New York prison warden where New York Court of
Appeals held state minimum wage law violated the
Federal Constitution), and Kelly v. Washington ex
rel. Foss Co., 302 U.S. 1, 82 L.Ed. 3, 58 S.Ct. 87
(1937) (writ of certiorari granted to Washington
State official where the supreme court of that state
17
held a vessel inspection law to be an unconstitutional
interference with interstate commerce).
Petitioners also believe that the conflict between
the federal and state courts alone is a special and
important reason for this Court to grant the
requested writ.
Of the existence of the conflict, a crisis of
constitutional magnitude, there can be no doubt.
Often when such a conflict looms, it is avoided. The
doctrines of comity or abstention may be invoked and
direct conflict is avoided.
Here, however, the courts recognize but have
been unable to avoid the conflict. It was clearly
recognized in the recent decisions of the Washington
State Supreme Court, review of which is sought
here:
We hold the Director of the Department of
Fisheries of the State of Washington does not
have authority to apportion fish to conform to
the federal district court decision, the federal
district court cannot compel the state officer to
act beyond his statutory authority, and the
granting of more than 50 percent of the
harvestable fish to 0.8 percent of the population
(treaty Indians) and less than 50 percent to
2,243,069 non-Indian population, violates the
Equal Protection Clause of the Fourteenth
Amendment of the United States
Constitution.”
Fishing Vessel Assn. v. Tollefson, supra, at 285-286,
Appendix pp. B-10-11.
The federal district court in a recent series of
orders also recognized the conflict:
Decisions by the Washington Supreme
18
Court in Puget Sound Gillnetters Asgn. v. Moos,
565 P.2d 1151 (1977), and Purse Seine Vessel
Owners Assn. v. Moos, No. 43938, July 1977,
have apparently given approval to the state
court practice of dismissing prosecutions against
non-treaty fishermen. In Puget Sound Gillnet-
ters Assn. v. Moos, the ven Supreme
Court said that the Director of Fisheries may not
“allocate fish among competing claimants for
purposes other than conservation,” and that he
may not allocate fish to treaty Indians or to
non-Indians. Those rulings prevent defendents
from complying with earlier decrees of this
court.
Order of 27 September, 1977, in United States v.
Washington.
Petitioners respectfully request that this Court
recognize this conflict as those courts have done and
resolve that conflict. Thus, the court must compare
the conflicting interpretations and implementation of
the treaties and choose which is to be the law of the
land.
The opinion of the federal court on how this
conflict should be resolved is not of record (unless
the several injunctions against state court proceed-
ings reflect an opinion). The thoughts of the
Washington Supreme Court on the subject have been
expressed:
This dilemma can be resolved only by the
Supreme Court of the United States.
Fishing Vessel I, p. 421, Appendix p. F-5.
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
19
economic and social interests cannot be
permitted to continue. Too much is at stake in
all areas.
Gillnetters (Stafford concurring in part, dissenting
in part), supra, at 698, Appendix p. D-22.
Short of such resolution, the situation in the
State of Washington continues chaotic and violence
has come to the waters of the State of Washington
as a result.
As this controversy has continued and the
conflict between the courts has developed, it is
unfortunate there has not yet been a forum in which
all interested parties have been able to litigate as
parties. The intervention of all but one sport and
commercial fishing groups was successfully opposed
by the United States and tribes in United States v.
Washington.
The state and its agencies have continued good
faith efforts to give notice to the United States and
the tribes of all actions which may affect their ability
to implement the requirements of the United States
v. Washington decision.
At the request of the United States and the
tribes, the federal court has ordered the state to
provide notice of such state proceedings and copies
of the pleadings involved (see order of the federal
court, reproduced in the appendix H-6).
Rather than participate in these numerous cases
the United States and the tribes have on several
occasions sought to enjoin the Washington courts.
The district court has granted several orders
enjoining the state superior courts from considering
20
any cases which may affect the implementation of
the United States v. Washington decision (E.g.,
Appendix, p. H-5). Though those orders have been
disregarded, no effort has yet been made to cite any
state judge for contempt.
That order is of particular interest in that it
leaves it to the state court to determine when actions
are subsequently filed whether or not they may affect
the ability of the state to implement the decision.
Probably the penultimate crisis between the courts
came when the United States Government brought
a motion asking the federal district court to enjoin
the Washington State Supreme Court in the
Gillnetters case, review of which is sought here.
Fortunately, that motion was denied.
As the cases sought to be reviewed here were
taken to the Washington State Supreme Court, the
state agencies invited the United States and the
tribes to participate as parties. Indeed, in the
Gillnetters case the state actually moved to
interplead the United States. Despite this notice and
the requests by the state to intervene, the United
States and the tribes have consistently chosen to
participate if at all only as amicus (their status in
Gillnetters). We also urge their participation in this
Court.
Orders of the federal court which conflict with
the decisions we seek to have reviewed here are on
appeal to the Ninth Circuit Court of Appeals.
Numerous such appeals are presently set for
argument in January and February of 1978. They
21
include orders of the federal district court allocating
special fisheries for Washington Indians from the
Canadian Fraser River run managed by the
International Pacific Salmon Fisheries Commission
(pursuant to treaty with Canada), orders allocating
specific numbers of fish to treaty Indians in the most
recent season, orders taking over the management of
the state’s fisheries (including providing for
enforcement through contempt of court against
individual fishermen), and an order extending this
system beyond the original case area and beyond the
area ceded by treaty,
It must be candidly admitted whoever prevails
in those appeals, it is likely review of such decision
will be sought before this Court. It may be possible
to consolidate such a case with the instant action for
full resolution of all issues.
The cases here, however, are an adequate and
appropriate vehicle for the necessary resolution of
the conflicts described above.
The confrontation between the state and federal
courts with petitioners bound by conflicting de-
cisions of each must be resolved by this Court, the
only court capable of resolving such conflict.
CONCLUSION
For the above reasons, writs of certiorari should
issue to review the judgments and opinions of the
Supreme Court of the State of Washington.
22
Respectfully submitted:
SLADE GORTON
Attorney General
JaMEsS M. JOHNSON
Sr. Asst. Attorney General
January 2, 1978
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
23
INDEX TO APPENDIX
CONSTITUTIONAL PROVISIONS, TREA-
TIES AND STATUTES
OPINION — Wash. State Commercial Pas-
senger Fishing Vessel Assn. v. Tollefson, 89
Wn.2d 276
ORDER DENYING MOTION FOR RECON-
SIDERATION — Puget Sound Gillnetters
Assn., et al. v. Donald Moos, No. 44401
OPINION — Puget Sound Gillnetters Assn. v.
Moos, 88 Wn.2d 677
ORDER GRANTING PETITION FOR
REHEARING — Washington State Commer-
cial Passenger Fishing Vessel Assn. v. Tollefson
and Washington Kelpers Assn. v. Tollefson No.
43642
OPINION — Washington State Commercial
Passenger Fishing Vessel Assn. v. Tollefson and
Washington Kelpers Assn. v. Tollefson, 87
Wn.2d 417
JUDGMENT and FINDINGS OF FACT AND
CONCLUSIONS OF LAW — Washington
State Commercial Passenger Fishing Vessel
Assn. v. Tollefson and Washington Kelpers
Assn. v. Tollefson, Nos. 50370 and 50552
PRELIMINARY INJUNCTION STAYING
STATE COURT INJUNCTION AND ORDER
IMPLEMENTING PRELIMINARY _IN-
JUNCTION — United States v. Washington,
No. 9213
APPENDIX A
UNITED STATES CONSTITUTION
ARTICLE II
§ 2 POWERS OF THE PRESIDENT. The
president shall be commander in chief of the army
and navy of the United States, and of the militia of
the several states, when called into the actual service
of the United States; he may require the opinion, in
writing, of the principal officer in each of the
executive departments, upon any subject relating to
the duties of their respective offices, and he shall
have power to grant reprieves and pardons for
offences against the United States, except in cases
of impeachment.
He shall have power, by and with the advice and
consent of the senate, to make treaties, provided
two-thirds of the senators present concur; and he
shall nominate, and by and with the advice and
consent of the sena‘e, shall appoint ambassadors,
other public ministers and consuls, judges of the
supreme court, and all other officers of the United
States, whose appointments are not herein otherwise
provided for, and which shall be established by law:
but the congress may by law vest the appointment
of such inferior officers, as they think proper in the
president alone, in the courts of law, or in the heads
of departments.
The president shall have power to fill up all
vacancies that may happen during the recess of the
senate, by granting commissions which shall expire
at the end of their next session.
A—2
ARTICLE VI
Debts, supremacy, oath. All debts contracted
and engagements entered into, before the adoption
of this Constitution, shall be as valid against the
United States under this Constitution, as under the
confederation.
This Constitution, and the laws of the United
States which shall be made in pursuance thereof; and
all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme
law of the iand; and the judges in every state shall
be bound thereby, any thing in the Constitution or
laws of any state to the contrary notwithstanding.
The senators and representatives before men-
tioned, and the members of the several state
legislatures, and all executive and judicial officers,
both of the United States and of the several states,
shall be bound by oath or affirmation, to support this
Constitution; but no religious test shall ever be
required as a qualification to any office or public
trust under the United States.
AMENDMENT V
RIGHTS OF ACCUSED IN CRIMINAL
PROCEEDINGS. No person shall be held to
answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval
forces, or in the militia, when in actual service in time
of war or public danger; nor shall any person be
A—3
subject for the same offense to be twice put in
jeopardy of life or limb, nor shall be compelled in
any criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken
for public use, without just compensation.
AMENDMENT X
POWERS RESERVED TO STATES OR
PEOPLE. The powers not delegated to the United
States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively, or
to the people.
AMENDMENT XIV
§ 1 CITIZENSHIP RIGHTS NOT TO BE.
ABRIDGED BY STATES. All persons born or
naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States
and of the state wherein they reside. No state shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life,
liberty, or property, without due process of law: nor
deny to any person within its jurisdiction the equal
protection of the laws.
A—4
WASHINGTON STATE CONSTITUTION
ARTICLE I
DECLARATION OF RIGHTS
§ 8 IRREVOCABLE PRIVILEGE, FRAN-
CHISE OR IMMUNITY PROHIBITED. No law
granting irrevocably any privilege, franchise or
immunity, shall be passed by the legislature.
§ 12 SPECIAL PRIVILEGES AND IMMUNI-
TIES PROHIBITED. No law shall be passed
granting to any citizen, class or citizens, or
corporation other than municipal, privileges or
immunities which upon the same terms shall not
equally belong to all citizens, or corporations.
TREATIES
TREATY OF MEDICINE CREEK
December 26, 1854
10 Stat. 1132
ArTICLE III. The right of taking fish, at all usual
and accustomed grounds and stations, is further
secured to said Indians, in common with all citizens
of the Territory, and of erecting temporary houses
for the purpose of curing, together with the privilege
of hunting, gathering roots and berries, and pasturing
their horses on open and unclaimed lands: Provided,
however, That they shall not take shell fish from any
beds staked or cultivated by citizens, and that they
shall alter all stallions not intended for breeding
horses, and shall keep up and confine the latter.
A—5
TREATY OF POINT ELLIOTT
January 22, 1855
12 Stat. 927
ArTICLE V. The right of taking fish at usual and
accustomed grounds and stations is further secured
to said Indians in common with all citizens of the
Territory, and of erecting temporary houses for the
purpose of curing, together with the privilege of
hunting and gathering roots and berries on open and
unclaimed lands. Provided, however, that they shall
not take shell-fish from any beds staked or cultivated
by citizens.
TREATY OF POINT NO POINT
January 26, 1855
12 Stat. 933
ARTICLE 4. The right of taking fish at usual and
accustomed grounds and stations is further secured
to said Indians, in common with all citizens of the
United States and of erecting temporary houses for
the purpose of curing; together with the privilege of
hunting and gathering roots and berries on open and
unclaimed lands. Provided, however, That they shall
not take shell-fish from any beds staked or cultivated
by citizens.
TREATY WITH THE MAKAH (TREATY OF
NEAH BAY)
January 31, 1855
12 Stat. 939
A—6
ArticLE IV. The right of taking fish and of
whaling or sealing at usual and accustomed grounds
and stations is further secured to said Indians in
common with all citizens of the United States, and
of erecting temporary houses for the purpose of
curing, together with the privilege of hunting and
gathering roots and berries on open and unclaimed
lands: Provided, however, That they shall not take
shell-fish from any beds staked or cultivated by
citizens.
TREATY WITH THE QUINAIELTS
July 1, 1855
12 Stat. 971
ARTICLE III. The right of taking fish at all usual
and accustomed grounds and stations is secured to
said Indians in common with all citizens of the
Territory, and of erecting temporary houses for the
purpose of curing the same; together with the
privilege of hunting, gathering roots and berries, and
pasturing their horses on all open and unclaimed
lands. Provided, however, That they shall not take
shell-fish from any beds staked or cultivated by
citizens; and provided, also, that they shall alter all
stallions not intended for breeding, and shall keep
up and confine the stallions themselves.
TREATY WITH THE YAKIMAS
June 9, 1855
12 Stat. 951
A—7
ArTICcLE III. And provided, That, if necessary for
the public convenience, roads may be run through
the said reservation; and on the other hand, the right
of way, with free access from the same to the nearest
public highway, is secured to them; as also the right,
in common with citizens of the United States, to
travel upon all public highways.
The exclusive right of taking fish in all the
streams, where running through or bordering said
reservation, is further secured to said confederated
tribes and bands of Indians, as also the right of
taking fish at all usual and accustomed places, in
common with citizens of the Territory, and of
erecting temporary buildings for curing them;
together with the privilege of hunting, gathering
roots and berries, and pasturing their horses and
cattle upon open and unclaimed land.
WASHINGTON STATE STATUTES
75.08.012 Duties of the department. It
shall be the duty and purpose of the department of
fisheries to preserve, protect, perpetuate and manage
the food fish and shellfish in the waters of the state
and the offshore waters thereof to the end that such
food fish and shellfish shall not be taken, possessed,
sold or disposed of at such times and in such manner
as will impair the supply thereof. For the purpose
of conservation, and in a manner consistent
therewith, the department shall seek to maintain the
economic well-being and stability of the commercial
fishing industry in the state of Washington.
A—8
75.08.0800 Rules and
regulations——Scope. The director shall inves-
tigate the habits, supply and economic use of, and
classify, the food fish and shellfish in the waters of
the state and the offshore waters, and from time to
time, make, adopt, amend, and promulgate rules and
regulations as follows:
(1) Specifying the times when the taking of any
or all the various clesses of food fish and shellfish
is lawful or prohibited.
(2) Specifying and defining the areas, places,
and waters in which the taking and possession of the
various classes of food fish and shellfish is lawful or
prohibited.
(3) Specifying and defining the types and sizes
of gear, appliances, or other means that may be
lawfully used in taking the various classes of food
fish and shellfish, and specifying the times, places,
and manner in which it shall be lawful to possess
or use the same.
(4) Regulating the possession, disposal, and sale
of food fish and shellfish within the state, whether
acquired within or without the state, and specifying
the times when the possession, disposal, or sale of
the various species of food fish or shellfish is
prohibited.
(5) Regulating the prevention and suppression
of all infectious, contagious, dangerous, and
communicable diseases and pests affecting food
fish and shellfish.
(6) The fixing of the size, sex, numbers, and
A-—9
amounts of the various classes of food fish and
Shellfish that may be taken, possessed, sold, or
disposed of. | 7
(7) Regulating the landing of the various classes
of food fish and shellfish or parts thereof within the
state.
(8) Regulating the destruction of predatory seals
and sea lions and other predators destructive of food
fish or shellfish, and specifying the proof of the
destruction of the same that shall be required.
(9) Specifying the statistical and biological
reports that shall be required from licensed or
uonlicensed fishermen, dealers, boathouses, handlers
or processors of food fish and shellfish. :
(10) Specifying which species of marine and
freshwater life are food fish and shellfish.
(11) Classifying the species of food fish and
shellfish or parts thereof that may be used for
purposes other than human consumption.
| (12) Promuigating such other rules and regula-
tions as may be necessary to carry out the provisions
of this title and the purposes and duties of the
department.
Subdivisions (1), (2), (3), (4), (6), and (7), shall
not apply to licensed oyster farms or oysters
produced thereon.
APPENDIX B
WASHINGTON STATE COMMERCIAL PASSENGER FISHING VEs-
SEL AssociaTION, Respondent, v. THOR TOLLEFSON,
ET AL, Appellants.
WASHINGTON KELPERsS AssociaTION, Respondent, v.
THOR TOLLEFSON, ET AL, Appellants.
[1] Fish — Indians — Allocation of Fish Resource — Equal
Protection. An allocation of a major portion of the fish resource of
this state to a small percentage of the population on the basis of
race or ancestry violates the equal protection provisions of the fed-
eral constitution.
[2] Constitutional Law — Treaties — Supremacy. That portion
of U.S. Const. art. 6 which describes treaties as the supreme law of
the land does not exempt treaties or their implementing laws from
compliance with constitutional provisions and mandates.
[3] Fish — Indians — Treaty Rights — State Enforcement —
Equal Prutection. Any interpretation of Indian treaties so as to
require a substantially disproportionate allocation of the state's fish
resource to treaty Indians is prohibited by federal equal protection
provisions, and no branch of the state government is permitted
under the federal constitution to implement such an interpretation.
Starrorp, J., and Wricurt, C.J., concur by separate opinion; Urrer and
Horowi7z, JJ., dissent by separate opinion; Do..iver, J., did not partic-
ipate in the disposition of this case.
Nature of Action: An association of charter boat oper-
ators challenged certain state fishing regulations which
reduced the daily salmon limit for sports fishermen.
Superior Court: The Superior Court for Thurston
County, Nos. 50370, 50552, Gerry L. Alexander, J., found
that the regulations were adopted solely as a result of a
federal court mandate and, on January 23, 1975, held the
regulations invalid on various grounds including equal pro-
tection and absence of statutory authority on the part of
the Director of Fisheries.
Supreme Court: The court originally dismissed the
cause as being moot (87 Wn.2d 417). After granting a
B—2
rehearing, the court now holds that the regulations in ques-
tion were enacted in excess of the Director's authority and
violated equal protection provisions of the federal constitu-
tion, and also holds that treaties between the United States
and Indian tribes are not exempt from compliance with
federal constitutional provisions. The judgment is affirmed.
Slade Gorton, Attorney General, and James M. Johnson
and Dennis D. Reynolds, Assistants, for appellants.
Thom, Navoni, Hoff, Pierson & Ryder, by Richard W.
Pierson and Dale L. Kingman, for respondents.
Rose.ini, J.—The majority of this court in Washington
State Commercial Passenger Fishing Vessel Assn v.
Tollefson, 87 Wn.2d 417, 553 P.2d 113 (1977), held that the
case was moot, since the regulations involved, which were
adopted in 1974, have been superseded and are now with-
out force or effect. Upon rehearing, the majority has
decided that we should address ourselves to the questions
raised on appeal, because they are of a recurring nature and
of public importance. om.
The Washington State Commercial Passenger Fishing
Vessel Association (hereinafter referred to as respondent)
obtained in the Superior Court a declaration that State
fisheries regulations WAC 220-56-013 and -063, which
reduced from three to two the daily limit of salmon which a
sports fisherman was permitted to catch in ocean waters,
were invalid. We sustain that judgment.
Sports fishing for salmon off the Washington and Oregon
coast has been a major recreational pursuit for a number of
years. Charter boats are taken for hire by sports fishermen
in Washington coastal areas for the purpose of catching
chinook and coho salmon. The 350 to 400 charter boats
constitute a major industry in the area of Ilwaco and
Westport on the southern coast of Washington and all of
the Olympic Peninsula ports, including Neah Bay, Sekiu,
La Push, Agate Beach, Port Angeles, and others. There also
exists a charter boat industry in Astoria and other Oregon
fishing ports in the vicinity of the Columbia River which
are directly in competition with Ilwaco and indirectly com-
peting with the Westport charter fleet.
At the hearing in the Superior Court, the director was
questioned with regard to the reason for the regulations,
and stated that they were adopted in response to a decision
by Federal District Judge George C. Boldt in United States
v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), affd,
520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 47
L. Ed. 2d 97, 96 S. Ct. 877 (1976), holding that treaties
between the treaty Indians and the United States gave the
tribes the right to take a certain percentage of the fish in
certain coastal streams. He was asked:
Q. Were there any other factors for the department and
yourself with respect to the regulatory enactments that
were adopted in complying with the Boldt Decision?. . .
A. Were it not for the Boldt Decision, we would not have
taken this action.
He further testified:
Q. What was the effect of the regulations designed with
respect to the coastal areas? A. It was desizned to put
more fish into the coastal Indian streams.
He testified that the regulation, in conformity with Judge
Boldt's ruling, was designed to significantly reduce non-
Indian fishing in order to make more fish available to the
Indians.
The court made the finding that the regulations were
passed solely as a result of the Boldt decision and not in
furtherance of the director's powers and duties under the
Washington statutes which created his office. These relate
to the conservation and preservation of the fishery of th.
State. The court found that the respondents were irrepara-
bly damaged; that there was a sharp decrease in the num-
ber of sports fishermen carried on the charter boats, which
necessitated a 3- to 6—-week recovery period, and that the
respondents suffered economic loss. The Superior Court
also tool note of the fact that the United States District
Court ordered the director to make a significant reduction
in non-Indian fishing. .
The issues raised by this appeal are: (1) Does the direc-
tor of the Department of Fisheries have the statutory
power to make an unequal allocation of fish among mem.-
bers of the same class of user? (2) Can a Federal District
Court order a state official to act beyond the powers vested
in the state official by the legislature? and (3) May Con-
gress and the executive department, by treaty, or may a
court of law, in interpreting a treaty, ignore and supersede
provisions of the federal constitution? . anit,
The first two questions were answered in the negative in
Puget Sound Gillnetters Ass'n v. Moos, 88 Wn.2d 677, 565
P.2d 1151 (1977). See also Purse Seine Vessel Owners
Ass'n v. Moos, 88 Wn.2d 799, 567 P.2d 205 (1977).
The third, though involving fundamental concepts, has
not been argued in this court before. }
The Federal District Court in United States v.
Washington, supra, allocated to the treaty Indians more
than 50 percent of the harvestable catch, to wit: the right to
take 50 percent of the harvestable salmon and steelhead,
plus all of the fish that the Indians can catch on the reser-
vation, where they are not regulated by the State, plus all
that they can eaty~and all they need for ceremonial
purposes. ‘
In addition, under the court's order, the share of salmon
and steelhead allocated to the Indians is to be increased by
{a]n additional equitable adjustment, determined from
time to time as circumstances may require, to compen-
sate treaty tribes for the substantially disproportionate
numbers of fish, many of which might otherwise be
available to treaty right fishermen for harvest, caught by
non-treaty fishermen in marine areas closely adjacent to
but beyond the territorial waters of the State, or outside
‘Except as provided in Puyallup Tribe, Inc. v. Washington Game Depart-
ment, 45 U.S.L.W. 4837 (1977).
B—5
the jurisdiction of the State, although within Washington
waters.
United States v. Washington, supra at 344.
The Federal District Court ruled that treaty Indians are
to be entitled to fish at other than traditional fishing
grounds and
{if a tribal member fishes in the all-citizen fishery at a
ocation which is not a usual and accustomed ground or
station of his tribe, that individual's catch will not count
toward the tribal off-reservation share.'”!
United States v. Washington, supra at 410.
The Federal District Court found all the above rights
from its interpretation of artide 3 of the Treaty of Medi-
cine Creek, 10 Stat. 1132, 1133 (1854), which states:
The right of taking fish, at all usual and accustomed
grounds and stations, is further secured to said Indians,
in common with all citizens of the Territory. . .
(Italics ours.)
Does the treaty, as thus interpreted, deny to citizens of
the state the equal protection of the laws guaranteed under
U.S. Const. amend. 14? In exploring that question, it is
necessary to take into consideration the following facts:
The number of treaty Indians living in the case area, as
identified by the Federal District Court, in proportion to
the number of other persons living in the area, is .028 per-
cent. The number of treaty Indians living on the reserva-
tion is less than .007 percent of the total tribal
membership. The Federal District Court found that only
794 treaty Indians engaged in commercial fishing. The
entire population in the Federal District Court case area
was 2,243,069. In Western Washington alone there are 6,600
commercial fishermen and 283,650 sports fishermen.
*To enforce the federal decision, the Federal District Court proposed to use
state resources and the state's power to regulate the taking of fish. Under its
orders, the state regulations were not to be confined to or limited to conservation
and preservation purposes, or to balancing the interest in on- and off-reservation
fishing with conservation measures. The State was required to regulate the taking
of fish in offshore waters, which were not a part of the treaty Indians’ usual and
accustomed fishing grounds, to increase the supply of fish at those places.
Thus, it is apparent that the court awarded over 50 per-
cent of the state's natural resources to a group of wedrno
zens comprising less than 1 percent of the population of the
area involved in the decision. The decision was based —_
a treaty made not with a foreign nation, but with —
ants of this Nation who were ancestors of the Indian claim-
ants in this action. The allocation was one which had -
precedent in the interpretation of Indian treaties. It ha
the effect of injecting a new provision into the treaties. .
[1] We think that there can be no doubt that were t e
executive department to enter into a treaty with a foreign
nation or were the Congress to pass a law which allocated a
portion of a state's natural resources to a group of its citi-
zens, based upon their race or ancestry, that Provision
would be struck down as a denial of equal protection of the
laws. The United States Supreme Court has observed _
the language of the treaty, "in common with all citizens 0
the Territory”, invokes the principles of equal ra
Department of Game v. Puyallup Tribe, Inc., 414 U.S. 44,
38 L. Ed. 2d 254, 94 S. Ct. 330 (1973) (Puyallup II), was
remanded with an admonition that the issue of equal pro-
tection is implicit in the term “in common with" as used in
reaty.
ws enitins Tribe, Inc. v. Department of Game, 391 U.S.
392, 403, 20 L. Ed. 2d 689, 88 S. Ct. 1725 (1968) (Puyallup
I), the court had also stated with respect to the term “in
common with": init Pies =:
ny ultimate findings on the er-
ded Diy m Bg dene Bie the issue o equal protection
implicit in the phrase "in common with.
Granted the equal protection clause of the Fourteenth
Amendment does not mandate complete equality. But it
cannot be seriously argued that an allocation of more than
50 percent of a natural resource of a state to a group of cit-
izens comprising a little more than .028 percent of the pop-
i not deny such protection.
wren the cae agree that the result achieved by the
Boldt interpretation, were it enacted as a law, would run
B—7
afoul of constitutional prohibitions. They suggest, however,
that the allocation is immune from constitutional restric-
tion because treaties are the supreme law of the land and
are binding within the territorial limits of the United
States. While it is true that a treaty is the supreme law of
the land under U.S. Const. art. 6, the constitution stands
above the treaty in the order of supremacy.
U.S. Const. art. 6 reads, in part:
This Constitution, and the laws of the United States
which shall be made in pursuance thereof; and all trea-
ties made, or which shail be made, under the authority
of the United States, shall be the supreme law of the
land; and the judges in every state shall be bound
thereby, any thing in the Constitution or laws of any
state to the contrary notwithstanding.
(Italics ours.)
To test the notion that a treaty may supersede the con-
stitution, let us examine a hypothetical case.
Suppose the executive branch of the government should
enter into a treaty with the Vatican to the effect that all
Catholic churches and schools are to be tax—supported in
the United States. And suppose that the United States
Senate should ratify the treaty and attempt to implement
it by statutes. Would such a trea'y or the implementing
statutes be enforceable in the United States, in spite of the
First Amendment's mandate that "Congress shall make no
law respecting an establishment of religion. . ."? Can it be
seriously suggested that the courts would enforce such a
treaty or laws?
If treaties are indeed supreme over the constitution, the
executive and the Senate can, by exercising the treaty-
making power, amend the basic document so as to grant
rights not found in that instrument or deny rights other-
wise mandated.
If this was the intent of the framers, then not only can
the exercise of the treaty power effectively amend the con-
stitution so as to preclude the assertion of rights guaran-
teed under that instrument, but it could just as easily effect
a change in the structure and character of our government
itself.
With respect to the supremacy of treaties over acts of
Congress, the Supreme Court has said:
By the Constitution a treaty is placed on the same foot-
ing, and made of like obligation, with an act of legisla-
tion. Both are declared by that instrument to be the
supreme law of the land, and no superior efficacy is given
to either over the other. When the two relate to the same
subject, the courts will always endeavor to construe them
so as to give effect to both, if that can be done without
violating the language of either; but if the two are incon-
sistent, the one last in date will control the other, pro-
vided always the stipulation of the treaty on the subject
is self—executing.
Whitney v. Robertson, 124 U.S. 190, 194, 31 L. Ed. 386, 8 S.
Ct. 456 (1888).
Any notion that a treaty may violate any section of the
constitution was laid to rest in Reid v. Covert, 354 U.S. 1,
16-17, 1 L. Ed. 2d 1148, 77 S. Ct. 1222 (1957). The court
stated:
There is nothing in this language [the supremacy clause]
which intimates that treaties and laws enacted pursuant
to them do not have to comply with the provisions of the
Constitution. Nor is there anything in the debates which
accompanied the drafting and ratification of the Consti-
tution which even suggests such a result. . . . It would
be manifestly contrary to the objectives of those who
created the Constitution, as well as those who were
responsible for the Bill of Rights—let alone alien to our
entire constitutional history and tradition—to construe
Article VI as permitting the United States to exercise
power under an international agreement without observ-
ing constitutional prohibitions. In effect, such construc-
tion would permit amendment of that document in a
manner not sanctioned by Article V.
(Footnote omitted.)
The Supreme Court has further stated:
The treaty is. . . a law made b i
one ne — of justice have no > pe eal cop
ard any of i i
a ny be peste. ames they violate the Consti-
Doe v. Braden, 57 U.S. (16 How.) 635, 656, 14 L. Ed. 1090
(1853). See Geofroy v. Riggs, 133 U.S. 258, 267, 33 L. Ed.
642, 10 S. Ct. 295 (1890); United States v. Wong Kim Ark
169 U.S. 649, 700, 42 L. Ed. 890, 18 S. Ct. 456 (1898).
Asakura v. Seattle, 265 U.S. 332, 341, 68 L. Ed. 1041, 44 S
Ct. 515 (1924).
If a treaty itself may not contravene constitutional provi-
sions, it must follow that an interpretation of a treaty
which leaves it open to constitutional objections, is likewise
forbidden (Reid v. Covert, supra); and certainly laws or
regulations which violate a constitutional provision, though
they be made pursuant to the terms of a treaty, must fail.
While generally the State has no jurisdiction over per-
sons living on Indian reservations,’ except as ceded by
Congress, its off-reservation jurisdiction has been fully rec-
ognized by the Supreme Court in Mescalero Apache Tribe
v. Jones, 411 U.S. 145, 148-49, 36 L. Ed. 2d 114, 93 S. Ct.
1267 (1973), where it said:
But tribal activities conducted outside the reservation
present different considerations. ... Absent express
federal law to the contrary, Indians going beyond reser-
vation boundaries have generally been held subject to
nondiscriminatory state law otherwise applicable to all
citizens of the State.
And see Organized Village of Kake v. Egan, 369 U.S. 60,
75, 7 L. Ed. 2d 573, 82 S. Ct. 562 (1962), which states:
Even where reserved by federal treaties, off-reservation
hunting and fishing rights have been held subject to state
regulation. . .
Both the State's Enabling Act* and the treaties them-
; a see Puyallup Tribe, Inc. v. Department of Game, 45 U.S.L.W. 4837
1977).
“The State Enabling Act which must be read in conjunction with the treaties,
Ward v. Race Horse, 163 U.S. 504, 41 L. Ed. 244, 16 S. Ct. 1076 (1896), and
B—10
selves (providing for the right to fish "in common") are
consistent with the State's jurisdiction over its lands and
waters outside the reservation, the only place we are con-
cerned with here. This being the case, the Fourteenth
Amendment has full application.
[3] The equal protection clause of the Fourteenth
“Amendment states that "[n]o state shall make or enforce
any law which shall . . . deny to any person within its
jurisdiction the equal protection of the laws."
Congress may not authorize the States to violate the
Equal Protection Clause. . . . Congress is without power
to enlist state cooperation in a joint federal-state pro-
gram by legislation which authorizes the States to violate
the Equal Protection Clause.
Shapiro v. Thompson, 394 U.S. 618, 641, 22 L. Ed. 2d 600,
89 S. Ct. 1322 (1969). See also Katzenbach v. Morgan, 384
U.S. 641, 651, 16 L. Ed. 2d 828, 86 S. Ct. 1717 (1966).
Whenever the federal law requires the State to act, the
State must act in conformity with the Fourteenth Amend-
ment. This rule must also apply to all courts; otherwise, the
effect is to give to the judicial branch the power to amend
the constitution. This cannot be done. Reid v. Covert,
supra.
We hold that the director of the Department of Fisheries
of the State of Washington does not have authority to
apportion fish to conform to the Federal District Court
decision, that the Federal District Court cannot compel a
state officer to act beyond his statutory authority, and that
the granting of more than 50 percent of the harvestable fish
to .028 percent of the population (treaty Indians) and less
Mescalero Apache Tribe v. Jones, 411 U.S. 145, 36 L. Ed. 2d 114, 93 S. Ct. 1267
(1973), did not disclaim or surrender to Indians any rights to participate in the
common fishery. The Supreme Court in Martin v. Lessee of Waddell, 41 U.S. (16
Pet.) 367, 414, 10 L. Ed. 997 (1842), stated:
And it would require very plain language in these letters—patent, to persuade
us that the public and common right of fishery in navigable waters, which has
-been so long and so carefully guarded in England, and which was preserved in
every other colony founded on the Atlantic borders, was intended, in this one
instance, to be taken away (from the inhabitants].
i ee |
B—11
than 50 percent to 2,243,069 non-Indian population, vio-
lates the equal protection clause of the fourteenth amend-
ment to the United States Constitution.
We affirm the trial court.
HAMILTON, BRACHTENBACH, and Hicks, JJ., and WieHL, J.
Pro Tem., concur.
STAFFORD, J. (concurring in the result only)—Notwith-
standing the import of any dissenting or concurring opin-
ions to the contrary, the current decisional law of this state
is reflected in Puget Sound Gillnetters Ass'n v. Moos, 88
Wn.2d 677, 565 P.2d 1151 (1977); Purse Seine Vessel Own-
ers Ass'n v. Moos, 88 Wn.2d 799, 567 P.2d 205 (1977). As
indicated therein, and as pointed out in this case, the
Department of Fisheries’ authority to regulate the salmon
fishery is limited to "conservation" purposes.
Inasmuch as the regulations adopted in 1974 have been
superseded, the issue before us is moot. Ordinarily we will
not resort to mootness as a means of dismissing cases
involving issues of great public importance. However, the
rule is not applicable here.
The instant record makes it abundantly clear the chal-
lenged regulations were not adopted for the purpose of
"conservation" but were formulated solely in response to an
order of the Federal District Court. That being the case,
the Director of Fisheries clearly exceeded the authority
granted him by the legislature. To that extent Puget Sound
Gillnetters Ass'n and Purse Seine Vessel Owners Ass'n are
fully dispositive of the only real issue before us. Thus, the
matter not only is moot but it no longer involves a subject
of great public importance, having been previously resolved
in the above cited cases.
When an appeal no longer presents the question that
originally warranted our retention of a moot case, we
should not continue to consider it merely to discuss, by way
of dicta, other matters only tangentially related thereto.
Despite the temptation to consider matters beyond the
B—12
Director's power to regulate the salmon fishery, the discus-
sion is not necessary to the decision and should be elimi-
nated as dicta.
Accordingly, I would dismiss the appeal of the Director
of Fisheries as moot.
Wricut, C.J., concurs with STAFFORD, J.
Urrer, J. (dissenting)—I have sailed the waters of the
Pacific Ocean from Kodiak Island in the north to Maui in
the south and most of the bays and inlets of this state. My
sympathies are with the men and women who sail these
waters and gain their livelihood from them. The oath of
office which I took, however, is paramount and binds me to
uphold the laws and Constitution of the State of
Washington and the Constitution of the United States as
well. When there is a conflict between state and federal law,
the supremacy clause of the United States Constitution
(U.S. Const. art. 6, cl. 2) makes binding upon the states the
rulings of the United States Supreme Court. We have
recently recognized in a different context that "State and
local laws cannot stand if they impede, burden, or frustrate
the purpose of [federal laws]." Lindsay v. Seattle, 86
Wn.2d 698, 708, 548 P.2d 320 (1976).
The majority opinion holds the apportionment of har-
vestable fish mandated by the federal courts in United
States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974),
affd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 US.
1086, 47 L. Ed. 2d 97, 96 S. Ct. 877 (1976), to be violative of
the equal protection clause of the fourteenth amendment to
the United States Constitution and therefore not binding
upon the State for the reason that treaty fishermen are not
members of a distinct group justifying differential treat-
ment. In so holding, the majority completely ignores the
most basic principles of Indian treaty law developed over
the past 70 years by the United States Supreme Court.
The majority embraces the argument that the treaty
clause at issue in United States v. Washington, supra,
B—13
granting to signatory tribes the right to take fish at "usual
and accustomed places in common with all citizens of the
territory", violates the equal protection clause of the federal
constitution unless interpreted to confer no greater rights
than those heid by nontreaty citizens. In so doing, the
majority asserts that the issue "has not been argued in this
court before.” In fact, however, the argument has been
advanced in substantially similar form before both this
court: and the United States Supreme Court on several
occasions.
The Supreme Court has expressly rejected this theory on
at least two occasions. Continued adherence to this dis-
credited doctrine should be embarrassing to this court and
is particularly unproductive in this case. I am convinced
that, whatever may be the personal inclinations of the
members of this court, continued refusal to accept the legal
principles enunciated in Department of Game v. Puyallup
Tribe, Inc., 414 U.S. 44, 38 L. Ed. 2d 254, 94 S. Ct. 330
(1973) (Puyallup I), Puyallup Tribe, Inc. v. Department
of Game, __ U.S. __, 53 L. Ed. 2d 667, 97 S. Ct. 2616
( 1977) (Puyallup Il), and United States v. Washington, supra,
will place upon us significant responsibility for whatever
unfortunate events hereafter transpire.
Treaty fishermen are undeniably a unique class under
well-established principles of federal law which this court is
powerless to ignore. Treaty fishermen may, therefore, be
treated as a distinct class of users for purposes of regulation, |
without trammeling upon principles of equal protection. Tt
cannot seriously be argued that the Director of the Depart-
ment of Fisheries lacks power to allocate fish between dis-
tinct and competing user groups for purposes of
conservation and systematic exploitation of the resource.
Such allocation has been the principal effect of department
regulation for many years. I would recognize the continuing
power in the director to promulgate regulations for the
purposes of conservation even though they have the effect
B—14
of allocating fish between distinct user groups, including
treaty fishermen, and would reverse the trial court.
I
INDIAN TREATY RIGHTS AND EQuAL PROTECTION
The majority opinion proceeds from the a
that treaty and nontreaty fishermen possess identica rig
to the state fishery and cannot lawfully be placed in sepa-
rate categories for purposes of regulation. An ie
of United States Supreme Court decisions interpreting : e
crucial clause of the Treaty of Medicine Creek and similar
provisions in other treaties” establishes this is not the law.
Native Americans who are beneficiaries of treaties ype
ated by our government with their ancestors possess Tg a
to the fish in our waters which clearly exceed those of ordi-
citizens.
United States v. Winans, 198 U.S. 371, 49 L. Ed. 1089,
95 S. Ct. 662 (1905), is the first of a long series of —
decided by the Supreme Court from this jurisdiction an
concerns the scope of the rights conferred by the fishing
provision at issue here. The issue presented in Winans was
framed by the court as follows, at page 379:
=
ivot of the controversy is the construction of t
oan ote tana Respondents contend that the sae
"the right of taking fish at all usual and accustomed
places in common with the citizens of the Territory
confer only such rights as a white man would have —
the conditions of ownership of the lands borderin ys the
river, and under the laws of the State, and, suc na
the rights conferred, the respondents further con :
that they have the power to exclude the Indians from the
river by reason of such ownership. /
The principles enunciated by the court in answering this
contention established the basic precepts which continue to
control this area of law.
. : os ? | |
A typical provision reads:
“The right of taking fish, at all usual and accustomed grounds and stations, is
further secured to said Indians, in common with all citizens of the Territory . a
Article 3, Treaty of Medicine Creek, 10 Stat. 1132, 1133 (1854).
B—15
The right to resort to the fishing places in controversy
was a part of larger rights possessed by the Indians, upon
the exercise of which there was not a shadow of impedi-
ment, and which were not much less necessary to the
existence of the Indians than the atmosphere the
breathed. New conditions came into existence, to whic
those rights had to be accommodated. Only a limitation
of them, however, was necessary and intended, not a tak-
ing away. In other words, the treaty was not a grant of
rights to the Indians, but a grant of rights from them—a
reservation of those not granted. ... There was an
exclusive right of fishing reserved within certain bounda-
ries. There was a right outside of those boundaries
reserved "in common with citizens of the Territory.” As a
mere right, it was not exclusive in the Indians. Citizens
might share it, but the Indians were secured in its enjoy-
ment by a special provision of means for its exercise.
They were given "the right of taking fish at all usual and
accustomed places," ae the right "of erecting temporary
ae for curing them." The contingency of the future
ownership of the lands, therefore, was foreseen and pro-
vided for—in other words, the Indians were given a right
in the land—the right of crossing it to the river—the
right to occupy it to the extent and for the purpose men-
tioned. No other conclusion would give effect to the
treaty.
United States v. Winans, supra at 381. The court then
held that neither the State nor an abutting landowner
could exclude the Indians from access to their usual and
accustomed fishing grounds. The decision clearly estab-
lished over 70 years ago thai treaty Indians possess rights
distinct from those of ordinary citizens.
The opinion in Winans recognized a principle of treaty
interpretation which retains crucial importance in evaluat-
ing equal protection arguments raised with respect to treaty
Indian rights. The rights and powers which Indian treaties
establish are not grants of power to the Indians, but rather
surrender of rights from them. Thus, rights not explicitly
given up are rights reserved by the Indians. The impor-
tance of this principle in the current case results from its
B—16
impact upon proper interpretation of the phrase, "in com-
aan In Winans the Supreme Court reversed a lower
court decision limiting the Indians to only the same fishing
rights as others had. Using reserved rights analysis, Justice
McKenna pointed to the absurdity of this interpretation; it
was hardly reasonable to conclude that the Indians had
been willing to give up all of their independent fishing
rights in their entirety. In an.oft-quoted passage, Justice
McKenna discussed the decision of the lower court and
evaluated it, at page 380:
The remarks of the court clearly stated the issue and
the grounds of decision. The contention of the respon-
dents was sustained. In other words, it was decided that
the Indians acquired no rights but what any inhabitant
of the Territory or State would have. Indeed, acquired no
rights but such as they would have without the treaty.
This is certainly an impotent outcome to negotiations
and a convention, which seemed to promise more and
give the word of the Nation for more. |
Winans stands unequivocally for the proposition that ‘in
common with" does not limit Indian fishing rights to those
which others may also exercise. Thus, the Winans decision
is itself a clear recognition of the separate character and
separate source of Indian treaty rights; while the ordinary
United States citizen has rights as defined by the constitu-
tion and subject to limitation by the proper exercise of the
police power of the states, treaty Indians retain rights as
established under treaty prior to the grant of United
States citizenship to the Indians.°
» ting the reserved rights analysis of United States v. Winans, 198
US. 371, 49 L. Ed. 1089, 25 S. Ct. 662 (1905), are the principles of treaty con-
struction mandating that (1) doubts and ambiguities are to be resolved in favor of
the Indians, and (2) the treaties are to be construed as the Indians understood
them. Choctaw Nation v. Oklahoma, 397 U.S. 620, 25 L. Ed. 2d 615, 90 S. Ct.
1328 (1970); McClanahan v. Arizona Tax Comm'n, 411 U.S. 164, 36 L. Ed. 2d 129,
93 S. Ct. 1257 (1973). These principles are so well established as to be beyond the
necessity for comment, but they do underscore the propriety—indeed, the neces-
sity—of recognizing that the treaties reserve to the Indians rights which others
simply do not have. Because the source of Indian fishing rights is different from
that of others, a distinction between the rights of these two groups with respect to
the scope of those rights cannot run afoul of equal protection guaranties.
B—17
Tulee v. Washington, 315 U.S. 681, 86 L. Ed. 1115, 62 S.
Ct. 862 (1942), involved a challenge by a member of the
Yakima Tribe to his conviction for fishing without a state
license. The court held:
[Wjhile the treaty leaves the state with power to impose
on Indians, equally with others, such restrictions of a
purely regulatory nature concerning the time and manner
of fishing outside the reservation as are necessary for the
conservation of fish, it forecloses the state from charging
the Indians a fee of the kind in question here.
In determining the scope of the reserved rights of
hunting and fishing, we must not give the treaty the nar-
rowest construction it will bear. In United States uv.
Winans, 198 U.S. 371, this Court held that, despite the
phrase “in common with citizens of the Territory,” Arti-
cle III conferred upon the Yakimas continuing rights,
beyond those which other citizens may enjoy, to fish at
their “usual and accustomed places: in the ceded area;
(Footnote omitted.) Tulee v. Washington, supra at 684.
The extent of the power of the State to regulate the
treaty fishery for the conservation purposes recognized in
Tulee was the next issue faced by the Supreme Court. In
Puyallup Tribe, Inc. v. Department of Game, 391 U.S. 392,
20 L. Ed. 2d 689, 88 S. Ct. 1725 (1968) (Puyallup I), the
State sought an injunction against fresh water set net fish-
ing by treaty Indians. The Supreme Court responded by
reiterating its prior holdings to the effect that the State had
power to regulate the off reservation treaty fishery where
necessary for the conservation of fish, but pointed out that
this standard is “distinct from the federal constitutional
standard concerning the scope of the police power of a
State.” (Italics mine.) Puyallup I at 402 n.14. The court
also dismissed the argument that the statutes granting citi-
zenship to Indians altered or abrogated their preexisting
treaty rights, stating: "The right to fish ‘at all usual and
accustomed’ places may, of course, not be qualified by the
State, even though all Indians born in the United States
are now citizens of the United States.” (Italics mine.)
B—i8
Puyallup I at 398. Thus, Puyallup I directly centradicts
the assertions by the majority here that the Indians’
present status as citizens allows the equal protection clause
to be utilized to abrogate established treaty rights.
Puyallup I was remanded for further findings on the
conservation issue with the admonition that such findings
"must cover the issue of equal protection implicit in the
phrase ‘in common with'". Puyallup I at 403. The majority
mistakenly seizes upon this language as supportive of its
position that treaty Indians have no greater rights than
other citizens. Subsequent decisions of that court refute the
majority's interpretation; it is now clear that the thrust of
the court's equal protection concern is directed at securing
full state respect for the rights of treaty fishermen.
Following the remand in Puyallup I, this court upheld
fisheries regulations allowing a treaty net fishery for salmon
and denying special rights to treaty fishermen as to steel-
head. Both parties petitioned the Supreme Court for review
and consolidated writs of certiorari were granted. See
Department of Game v. Puyallup Tribe, Inc., 414 U.S. 44,
38 L. Ed. 2d 254, 94 S. Ct. 330 (1973) (Puyallup II). In its
petition for writ of certiorari in Puyallup II, the State
Department of Game listed as one of the grounds for
Supreme Court review:
The failure of the court, in the opinion below [i.e., 80
Wn.2d 561] to hold that state conservation laws may be
applied to Indian and non-Indian citizens on an equal
basis in off-reservation waters violated the Equal Protec-
tion Clause adverted to by Justice Douglas in expressing
the view for a unanimous court in the Puyallup opinion
at 403.
Petition for Writ of Certiorari on behalf of the State of
Washington Department of Game, United States Supreme
Court cause No. 72-481, at 10. An examination of the briefs
presented to the Supreme Court in that case confirms that
the analysis embraced by the majority here was presented
B—19
to the Supreme Court in Puyallup II.’ Such an analysis
was expressly rejected in Puyallup II. The issue presented
was framed thusly by the court:
The ban on all net fishing in the Puyallup River for
steelhead grants, in effect, the entire run to the sports
fishermen. Whether that amounts to discrimination
under the Treaty is the central question in these cases.
(Footnote omitted.) Puyallup II at 46—47. Though it was
conceded that the Indians were free to pursue steelhead as
sports fishermen, the court held the treaty granted to the
treaty tribes special rights to a portion of the catch, over
and above that enjoyed by others.
if hook-and-line fishermen now catch all the steelhead
which can be caught within the limits needed for escape-
ment, then that number must in some manner be fairly
apportioned between Indian net fishing and non-Indian
sports fishing. . .
The aim is to accommodate the rights of Indians
under the Treaty and the rights of other people.
(Italics mine.) Puyallup II at 48-49. Puyallup II clearly
establishes that Indians fishing pursuant to a treaty possess
special rights and constitute a distinct class of fishermen.
The conclusion that the type of equal protection argument
advanced here by the majority was expressly rejected in
Puyallup II is inescapable.
7A similar argument has also been considered and rejected by a majority of
this court. See Department of Game v. Puyallup Tribe, Inc., 80 Wn.2d 561, 497
P.2d 171 (1972). Indeed, Justice Hale in dissent castigated the majority for its
rejection of the equal protection analysis which the State had urged upon this
court. Further, the majority opinion in that case made clear the court's recogni-
tion at that time of the distinct and separate status of treaty fishermen, a recog-
nition which the majority's opinion in this case retracts without explicitly
overruling, citing, or even acknowledging its prior analysis. It is particularly diffi-
cult to understand this court's current departure from its prior position, especially
when that position was so clearly in harmony with the binding Supreme Court
precedents, a distinction which the position of the majority in this case cannot
enjoy.
“The statement in the majority opinion concerning the terms of the remand in
Puyallup II is unfortunately inaccurate and therefore misleading. The majority
asserts that Puyallup I] was remanded with an admonition that the issue of equal
protection is implicit in the term “in common with." The implication is that the
majority's equal protection theory was recognized by the court in Puyallup II.
Puyallup II also establishes that this special class of
fishermen, in addition to other rights such as those enunci-
ated in Winans and Tulee, is entitled to a fair portion of
harvestable fish covered by the treaty and that what con-
stitutes a "fair portion” is to be decided on a case-by-case
basis on the facts presented.
ld be employed is not for us to pro-
ae ae cntiaiine-tie number of nets, the
number of steelhead that can be caught with nets, the
places where nets can be located, the length of the net
season, the frequency during the season when nets may
be used. On the other side are the number of hook-and-
line licenses that are issuable, the limits of the catch of
each sports fisherman, the duration of the season for
sports fishing, and the like.
Puyallup Il at 48-49. .
Subsequent Supreme Court decisions reinforce this
analysis. Antoine v. Washington, 420 U.S. 194, 43 L. Ed. 2d
129, 95 S. Ct. 944 (1975), concerned the scope of the treaty
hunting rights of Colville Indians under a similar treaty
provision. This court had upheld convictions for hunting
out of season in violation of state law, rejecting a treaty
defense. The Supreme Court reversed, again recognizing
that Indian tribal members have special rights under their
treaties.
Finally, the opinion of the State Suprerne Court con-
strues Art. 6 Pinponron: fe a promise by the United States
that so long as it retained any ceded land and allowed
others to hunt thereon, Indians would be allowed also to
hunt there. 82 Wash. 2d, at 449-450, 511 P.2d, at 1357-
1358. But the provisions of Art. 6 that the preserved
rights are not exclusive and are to be enjoyed "in com-
mon with all other persons," does not support that inter-
pretation or affect the Supremacy Clause’s preclusion of
qualifying state regulation. Non-Indians are, of course,
Puyallup Il was not, however, remanded with such an admonition. Such a state-
ment only appears in the Puyallup II opinion in the introductory paragraphs
explaining the holding in Puyallup I. The preceding comments show that this
admonition was not intended to carry the meaning given it by the majority here.
There not only is no statement in Puyallup II which supports the majority, rather
the entire opinion refutes it.
————
B—21
not beneficiaries of the preserved rights, and the State
remains wholly free to prohibit or regulate non-Indian
hunting and fishing. The ratifying legislation must be
construed to exempt the Indians’ preserved rights from
like state regulation. . .
(Italics mine.) Antoine v. Washington, supra at 205-06.
Justice Douglas, in a concurring opinion, further clarified
his opinions in Puyallup I and Puyallup I, stating:
It has long been settled that a grant of rights—in the
first case, fishing rights—on an equal footing with citi-
zens of the United States would not be construed as a
grant only of such rights as other inhabitants had. As
stated in United States v. Winans, 198 US. 371, 380
(1905): "This is certainly an impotent outcome to negoti-
ations and a convention, which seemed to promise more
and give the word of the Nation for more." That was our
view in Puyallup Tribe v. Department of Game, 391 U.S.
392 (1968). A "right" which the Federal Government
grants an Indian may "not be qualified or conditioned by
the State," id., at 399.
I agree with the Court that conservation measures,
applicable to all, are available to the State, id., at 398-
403; but discrimination against the Indians by conserva-
tion measures is not permissible, Washington Game
Dept. v. Puyallup Tribe, 414 U.S. 44, 48 (1973). . . . The
State boldly claims that its power to exact a hunting
license from all hunters qualifies even the Indians’ right
to hunt granted by Congress, irrespective of any conser-
vation need. A State may do that when it comes to non-
Indians or to Indians with no federal hunting rights,
Lacoste v. Department of Conservation, 263 U.S. 545,
549 (1924). But Indians with federal hunting "rights" are
quite different.
(Italics mine.) Antoine v. Washington, supra at 211-12.
Thus, after Antoine there could be no doubt that (1) the
phrase "in common with" is not to be construed as merely
giving the treaty Indians the same rights that others had, as
the majority's fallacious analysis does; and (2) Indians pos-
sessing rights under treaties constitute a special and sepa-
rate class for constitutional purposes.
One year after Antoine the United States Supreme Court
denied certiorari in United States v. Washington, supra.
The opinion of the Ninth Circuit in that oe =—
affirmed the District Court, rests squarely upon ; ; .
portion” holding of Puyallup Il. See United on . =
Washington, 520 F.2d 676, 687-88 (9th Cir. a ds ;
Ninth Circuit recognized the treaty Indians’ rig “ .
equitable apportionment of the harvestable fish, w rich w
mandated by Puyallup Ul, and held the yw yore
ordered by the District Court was within the trial ju a
discretion as a court of equity devising an ay RGR
This is entirely consistent with the Supreme a
ing in Puyallup Il and adds nothing new to it. ~% _
Circuit specifically did not rest its decision gene _ ne -
sity of a precise 50 percent apportionment of fis Soe teow
treaty tribes. It held the District Court had — ine
appropriate legal principles (i.e., the necessity for s yo sa
table apportionment) and reviewed the precise Z = cm
made only for abuse of discretion. The Supreme our _.
dictably denied certiorari in this case because it presen S
no questions which the court had not passed upon
Il.
oy Cn Court's most recent pronouncements in
this field are contained in Puyallup III, which arose > a
result of the remand in Puyallup Il and subsequent wt
sion of this court in the same case. See yore
Game v. Puyallup Tribe, Inc., 86 Wn.2d 664, 548 re h
(1976). In its opinion following remand this court = r “
allocation of 45 percent of the natural run of steel ea :
Indian fishermen. In an expansive bit of dicta the majority
invited the Supreme Court to reconsider its ee
of the treaty provision. The State, in its petition for = ~
certiorari, presented once again to the Supreme ‘ws
essentially the same argument which the majority here =
submitted to be unique, and indeed recognized that t os
issue had been previously decided. In his petition the
Attorney General stated:
ize that the Court [i.e., the United States
genes tea has ruled upon this issue in Puyallup Il
414 U.S. 44...
B—23
Response to Petition for Certiorari and Cross Petition by
State of Washington Department of Game, Supreme Court
cause No. 76-423, at 24. It can hardly be said that the equal
protection argument advanced in this case is new or unique.
The Supreme Court affirmed the 45 percent allocation in
Puyallup Il.
To summarize, the federal cases establish that treaty
Indians enjoy a specific federal right, or occupy a special
class, entitled to take fish at specific locations. In part this
is a property right, including an easement across even pri-
vately owned adjacent land to gain access to a reserved
fishing site. United States v. Winans, supra. The exemp-
tion from taxation established in Tulee v. Washington,
supra, is yet another aspect of this right, being an immu-
nity which even the fee owner of riparian property may not
assert. But these attributes do not exhaust the scope of the
treaty clause. The treaty also provides protection from
state regulation which effectively and unnecessarily
destroys the right to take fish set forth by the treaty provi-
sion. In order to regulate the treaty fishery the State must
show that its regulation is a reasonable and necessary con-
servation measure and that its application to the Indians is
necessary in the interests of conservation. Tulee v.
Washington, supra; Department of Game v. Puyallup
Tribe, Inc., supra (Puyallup II); Antoine v. Washington,
supra. Finally, the State must also "fairly apportion” the
harvestable run of fish remaining available after such regu-
lation between treaty fishermen and others. See Puyallup
II; United States v. Washington, supra.
When these special rights are contrasted with those of
ordinary citizens it is apparent that federal law has estab-
lished that two distinct classes of fishermen exist in the
state of Washington. It is settled law that the State is free
to enact regulations prescribing the terms upon which pri-
vate citizens may take possession of fish found in this
state's waters because those fish are the property of the
sovereign. Washington Kelpers Ass'n v. State, 81 Wn.2d
410, 502 P.2d 1170 (1972), cert. denied, 41i U.S. 982 (1973);
B—24
State v. Moses, 79 Wn.2d 104, 483 P.2d 832 (1971), cert.
denied, 406 U.S. 910 (1972); Vail v. Seaborg, 120 Wash.
126, 207 P. 15 (1922). State regulations may not, however,
be applied to treaty fishermen in a manner which conflicts
with their aforementioned rights under federal treaties.
Indian treaties have the same force and effect as treaties
with foreign nations. As such, they are a part of the
supreme law of the land and are binding upon the states,
state laws to the contrary notwithstanding. Worcester v.
Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832); Cherokee
Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831).
The fact that Indians have since been made citizens of the
United States in no way impairs the continued validity of
their treaty rights or the obligation of the states to respect
them. See Puyallup I.
The majority contends the Department of Fisheries may
not enact regulations for purposes of conservation which
result in an allocation of fish between treaty and nontreaty
fishermen because to do so would result in a discriminatory
allocation of fish between members of the same class. The
opinion rests upon a false premise. As has been clearly
demonstrated, treaty and nontreaty fishermen are in fact
members of different classes and may be treated differently
without violating the precep‘s of equal protection.
Article I, § 12 of the state constitution and the four-
teenth amendment to the Federal constitution, prohib-
iting special privileges and immunities and
guaranteeing equal protection of the laws, require that
class legislation must apply alike to all persons
within a class, and reasonable ground must exist for
making a distinction between those within, and those
without, a designated class. Within the limits of these
restrictive rules, the legislature has a wide measure of
discretion, and its determination, when expressed in
statutory enactment, cannot be successfully attacked
unless it is manifestly arbitrary, unreasonable, inequi-
table, and unjust.
Washington Kelpers Ass'n v. State, supra at 421, quoting
Clark v. Dwyer, 56 Wn.2d 425, 435-36, 353 P.2d 941 (1960).
Contrary to the assertion in Puget Sound Gillnetters Ass'n
v. Moos, 88 Wn.2d 677, 565 P.2d 1151 (1977), the proposed
regulations do not result in classification on the basis of
race, but upon rights under federal treaties. Many native
Americans do not possess the special treaty rights which
the federal courts have ordered this State to respect. Treaty
Indians possess vested rights which set them apart from
ordinary citizens and establish them as a distinguishable
class for purposes of state regulation. There is no violation
of equal protection here.
Il
THE Scope OF THE DirREcTOR's REGULATORY POWERS
The Director of Fisheries' regulatory powers are set forth
principally in three statutes, RCW 75.08.012; .020; .080.
These statutes are clearly designed to allow the director to
enact regulations to conserve the state fishery in order to
preserve and enhance the industry's economic viability. The
director's duties in this regard are set forth in mandatory
terms in RCW 75.08.012.
It shall be the duty and purpose of the department of
fisheries to preserve, protect, perpetuate and manage the
food fish and shellfish in the waters of the state and the
offshore waters thereof to the end that such food fish and
shellfish shall not be taken, possessed, sold or disposed of
at such times and in such manner as will impair the sup-
ply thereof. For the purpose of conservation, and in a
manner consistent therewith, the department shall seek
to maintain the economic well-being and stability of the
commercia) fishing industry in the state of Washington.
The more specific provisions of RCW 75.08.020 and .080°
are consistent with this general mandate. In order to effec-
tively exercise the mandatory duties imposed upon him by
®*The director shall devote his time to the duties of his office and enforce the
laws and regulations of the director relating to propagation, protection, conserva-
tion, preservation, and management of fuod fish and shellfish.” RCW 75.08.020.
"The director shall investigate the habits, supply and economic use of, and
classify, the food fish and shellfish in the waters of the state and the offshore
B—26
statute, it is essential that this court recognize the power of
the director to enact regulations which he finds necessary to
preserve and promote the fisheries resource in light of the
new demands placed upon it by virtue of federal court
decisions which are binding upon the state. As pointed out
by Justice Horowitz in his dissent in Puget Sound Gillnet-
ters Ass'n v. Moos, 88 Wn.2d 677, 693-94, 565 P.2d 1151
(1977):
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 author-
ity and were indeed obligated under the supremacy
clause to refrain from violating the District Court injunc-
tion. Indeed, the defendants, including the Department
of Fisheries and its director, are specifically ordered to
"fully ovserve and to the best of their ability carry out
the provisions and purposes of the treaties cited in para-
graph 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 Fish-
eries and its director are bound by the injunction. More-
over, as United States v. Washington, supra at 402
states: "Because the right of each treaty tribe to take
waters, and from time to time, make, adopt, amend, and promulgate rules and
regulations as follows:
"(1) Specifying the times when the taking of any or all the various classes of
food fish and shellfish is lawful or prohibited.
*(2) Specifying and defining the areas, places, and waters in which the taking
and possession of the various classes of food fish and shellfish is lawful or
prohibited.
*(3) Specifying and defining the types and sizes of gear, appliances, or other
means that may be lawfully used in taking the various classes of food fish and
shellfish, and specifying the times, places, and manner in which it shall be lawful
to possess or use the same.
"(6) The fixing of the size, sex, numbers, and amounts of the various classes
of food fish and shellfish that may be taken, possessed, sold, or disposed of.
(7) Regulating the landing of the various classes of food fish and shellfish or
parts thereof within the state.
*(12) Promulgating such other rules and regulations as may be necessary to
carry out the provisions of this title and the purposes and duties of the depart-
ment.” RCW 75.08.080.
a
TT ere en
re ere eT
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 actions of the state."
To fail to recognize this binding ruling at this point will
only further imperil the resource itself and insure that the
State will lose a substantial amount of control over this
vital resource to the federal government and those agencies
which ultimately are vested with control of the treaty fish-
ery. Such a result is certainly counterproductive. The
refusal of our state courts to accept as binding the pro-
nouncements of federal courts with regard to the federal
rights of treaty fishermen has already contributed to a sub-
stantial loss of state control over the state fisheries
resource. The federal government has now entirely pre-
empted the power of the states to manage the offshore
fishery beyond the territorial limits of the state. See
Northwest Trollers Ass'n v. Moos, 89 Wn.2d 1, 568 P.2d
793 (1977). Federal enforcement officers also patrol our
inland waters, utilizing the federal contempt power to
enforce federal rights which our state courts have chosen in
many instances to ignore. The state fisheries director has
himself been placed in personal jeopardy by the federal
court for alleged refusal to comply with its orders. The
state fisheries resource has suffered considerably from the
absence of a consistent comprehensive management policy
throughout this lengthy legal entanglement. More impor-
tantly, this controversy has escalated to the point at which
the lives and property of individual citizens are in peril. It
would be painfully naive to assert that this court's reluc-
tance to recognize the validity of the decisions of the
United States Supreme Court and other federal courts with
regard to the treaty fishery is not at least in part responsi-
ble for this situation.
In Gillnetters the majority recognized that the director
possesses the power to allocate fish between competing
claimants for the purpose of conservation. Puget Sound
Gillnetters Ass'n v. Moos, supra at 683. It held, however,
that this power did not include authority to allocate fish
between competing claimants of the same class. As the
previous discussion shows, treaty and nontreaty fishermen
are not "of the same class" and the Gillnetters decision is
therefore not controlling.
Gillnetters also mistakenly rests upon the proposition
that the United States Supreme Court has not construed
the treaty provision in a manner which is binding upon the
State. This is also incorrect. Puyallup II expressly holds
that the treaty clause entitles its beneficiaries to take a fair
portion of the harvestable fish. The subsequent decision in
United States v. Washington, supra, is expressly based
upon the controlling rule of law enunciated in Puyallup II.
This court is, of course, not free to interpret the treaty
clause in a manner ‘nconsistent with Puyallup II. The allo-
cation ordered against the State by the District Court in
United States v. Washington, supra, has been held to be
within the trial court's discretion under the fair portion
rule by the Ninth Circuit and the Supreme Court has
denied certiorari, making that judgment final and binding
upon the State as a party to that action.
Given all this, the simple fact is that, if the director is
not allowed to promulgate regulations for the conservation
of the fishery which reflect the competing rights of treaty
and nontreaty fishermen, someone else will. The regulations
promulgated by the department under these statutes have
for many years resulted in allocation of fish between com-
peting classes of user groups such as commercial and non-
commercial, seiners and gillnetters, etc. A new class now
exists which it is both logical and necessary that the direc-
tor take into account. To hold that he is without power to
do so is both inconsistent with established law and will but
assure that the legislative purpose set forth in RCW 75.08-
.012 will be entirely frustreted.
The words "conservation" and “management” in the
applicable statutes are broad enough to encompass the
~ inline shied, sbi n sap dada tea fe
a
——
jl A A AR rh ema we 8
B—29
mtg of allocation embodied in the challenged regu-
ations. Allocation is an important factor in the conserva-
tion of fish runs. Where a resource is not presently
plentiful enough to satisfy all needs, a restriction on
withdrawal must be instituted in order to conserve the
renewable resource and insure its availability in the
future.
Washington State Commercial Passenger Fishing Vessel
Ass'n v. Tollefson, 87 Wn.2d 417, 423-24, 553 P.2d 113
(1976) (Utter, J., dissenting).
The majority opinion misconstrues cases and ignores
binding precedent. It reaches a result which can only make
a poor situation much worse for all citizens of our state. I
dissent.
Horowi7Tz, J., concurs with Urrer, J.
APPENDIX C
THE SUPREME COURT OF WASHINGTON
No. 44401
ORDER
DENYING MOTION FOR RECONSIDERATION
PuGeT SouND GILLNETTERS ASSOCIATION. ET AL.
Petitioners,
v.
DonaLp Moos, eT at.
Respondents
The Court having decided by a vote of five to three that the
respondents’ petition for reconsideration should be denied.
It is ordered that the petition be and it hereby is denied.
Dated this 10th dav of October, 1977.
| s/ Charles A. Wright.
| Chiet Justice
88 Wn.2d 677
ol * “Wreetue
;
:
;
APPENDIX D
[No. 4401. En Banc. June 9, 1977.]
Pucet Sounp GILLNETTERS ASSOCIATION, ET AL,
Petitioners, v. DONALD Moos, ET AL,
Respondents.
{1] Fish — State Regulation — Department of Fisheries —
[2]
[3]
(4)
Statutory Authority. The authority of the Department of Fish-
eries to regulate commercial salmon fishing (RCW Title 75) is lim-
ited to conservation purposes, viz., to prevent harvesting of fish
required for natural or artificial spawning. It has no power to allo-
cate fish among users of the same class.
Fish — Indians — State Conservation Rules — Treaty
Indians. Indians, as citizens of the United States and this state, are
bound by constitutional requirements of equal protection and pro-
hibitions against special privileges and immunities. Distinction
based upon a fisherman's race is improper, and unequal treatment
of commercial fishermen based upon their being Indian or non-
Indian would be unconstitutional.
States — Federal Court Mandate — Statutory Agencies.
Federal courts cannot order state agencies to affirmatively act in
excess of their statutory authority.
Fish — Indians — Treaties — Jurisdiction. Federal district
courts do not have jurisdiction to the exclusion of state courts to
interpret Indian treaties which affect important interests of the
state.
Horowrrz, STarrorp, and Utrer, JJ., dissent in part by separate opin-
ions; Dottrver and Hicks, JJ., did not participate in the disposition of
this case.
Nature of Action: The petitioners, an individual and a
commercial fishing association, filed an original action
against a state officer (Director of Fisheries) in the nature
of mandamus. The petitioners sought a writ requiring the
director to restrict fishing regulations to those necessary for
conservation and to treat Indian and non-Indian fishermen
equally.
Supreme Court: The court holds that the Department
of Fisheries has no power to regulate fishing except for
conservation purposes and that equal protection concepts
require that fishing regulations apply equally to Indian and
non-Indian commercial fishermen. The court further holds
that it is not bound by federal district court judgments in
this matter and that the federal court cannot require the
Department of Fisheries to act beyond its statutory
authority. No writ is issued on the basis that the director
will voluntarily abide by the court's decision.
Douglas M. Fryer, Jacob A. Mikkelborg, Charles E.
Yates, and Henry Haugen (of Moriarty, Long, Mikkelborg
& Broz), for petitioners.
Slade Gorton, Attorney General, and James M. Johnson
and Dennis D. Reynolds, Assistants, for respondents.
Joseph T. Mijich and John P. World, for intervenors.
Peter R. Taft and Edmund B. Clark on behalf of United
States Department of Justice and Alan C. Stay, John
Clinebell, Steven S. Anderson, and Mason D. Morisset on
behalf of Lummi, Makah, Quileute, Puyallup, Muckleshoot,
and Skokomish Indian Tribes, amici curiae.
RosE..ini, J.—Petitioners are commercial gillnet fisher-
men who harvest salmon in the waters of Washington state.
oh get SND NTT OO ad at
They seek a writ of mandate ordering the Director of Fish-
eries to issue regulations which apply equally and in a non-
discriminatory fashion to both treaty and nontreaty
fishermen. They further ask that the Department of Fish-
eries be ordered to confine its regulation of commercial
gillnet fishing to conservation purposes. They also request a
declaration that treaty Indians do not have a greater right
of access to hatchery-reared fish than do non-Indian
fishermen.
By statute, RCW 75.12.010, the Coho season opens on
the second Monday of September and lasts through the
30th day of November, unless the Department of Fisheries
provides otherwise. This year, according to department
estimates, there will be 702,750 Coho salmon available for
harvesting after allowing for escapement for the enhance-
ment of future runs. The total estimated market value of
the Coho available for harvesting this year is approximately
$5 m’ ion.
The legislature has declared:
The preservation of the fishing industry and food fish
and shellfish resources of the state of Washington is vital
to the state's economy, and effective measures and reme-
dies are necessary to prevent the depletion of these
resources.
Laws of 1973, 1st Ex. Sess., ch. 220, § 1, p. 1700.
The federal district court for the Western District of
Washington, in United States v. Washington, 384 F. Supp.
312 (W.D. Wash. 1974), construed the Medicine Creek and
other Indian treaties and held that treaty fishermen were
entitled to 50 percent of the harvestable salmon in Puget
Sound, plus such salmon as are necessary for ceremonial
and subsistence purposes.
This court, in Department of Game v. Puyallup Tribe,
Inc., 86 Wn.2d 664, 548 P.2d 1058 (1976), on a direct
remand from the United States Supreme Court, Depart-
ment of Game v. Puyallup Tribe, 414 U.S. 44, 38 L. Ed. 2d
254, 94 S. Ct. 330 (1973), interpreted the same treaty lan-
guage to mean that the right accorded the Indians under
D—4
the Medicine Creek treaty to fish "in common with others"
was a right, not to a certain number or percentage of fish,
but to an equal opportunity to fish. We further held that if
the treaties guarantee more than this to the Indian signa-
tories, then hatchery-reared fish were beyond the scope of
the treaty.
In response to these conflicting court decisions, the
department issued a regulation which was designed to allot
to treaty Indians 554,400 of the 702,750 Coho available for
harvest.
The Superior Court for Thurston County has heard a
number of suits! challenging the right of the department to
promulgate regulations for the apportionment of the catch
rather than for conservation purposes. That court has con-
sistently held that regulations promulgated to facilitate the
federal court's ruling rather than for the purpose author-
ized by statute—that of conservation—are beyond the
authority of the Department of Fisheries and therefore
void.
The Department of Fisheries, in its arguments in open
court, requested that the court define its authority in
regard to regulation for conservation purposes and to
declare whether it has the right to allocate fish. Because of
the uniqueness of its position and its evident good faith in
attempting to carry out its duties, we decline to issue a writ
of mandate but will set forth our opinion upon the ques-
tions concerning the authority of the department. We have
full confidence that the director will abide by our decision.
The Department of Fisheries, a statutory agency of the
state, is established by RCW Title 75, which also defines
the extent of its authority to act. RCW 75.08.012 sets forth
the duties and purposes of the department. It provides that
it shall be its duty to
1An example of these cases is seen in Washington State Commercial Passen-
ger Fishing Vessel Ass'n v. Tollefson, 87 Wn.2d 417, 553 P.2d 113 (1976). Some
other cases have been Antone v. Tollefson, Thurston County cause No. 46427;
Columbia River Fishermen's Protective Ass'n v. Moos, Thurston County cause
No. 55339; Schroeder v. Moos, Thurston County cause No. 55387.
«ee.
ee at ee eee oe ee
te RON ch AIEEE OPA Ary
;
4
a
,
3
poanenve, protect, perpetuate and manage the food fish
and shellfish in the waters of the state and the offshore
waters thereof to the end that such food fish and shellfish
shall not be taken, possessed, sold or disposed of at such
times and in such manner as will impair the su y
thereof. For the purpose of conservation, and in a man-
ner consistent therewith, the department shall seek to
maintain the economic well-being and stability of the
commercial fishing industry in the state of Washington.
This court has previously considered the meaning of sub-
stantially the same language used with reference to the
Department of Game's authority to act. In the case of
Hartman v. State Game Comm'n, 85 Wn.2d 176, 532 P.2d
614 (1975), this court looked to RCW 77.12.010, which pro-
vided as follows:
The game animals. . .shall be preserved, protected, and
ok ary sy: and to that end such game animals .. .
shall not be taken at such times or places, by such means,
in such manner, or in such quantities as will impair the
supply thereof.
(Italics ours.) We determined that this language gave to the
Department of Game the authority to act in matters of
conservation only.
The Washington State Legislature has established, in
RCW 75.12.010, a fishing season for salmon. The statute
provides:
[S]ubject to such seasons and regulations as may be
established from time to time by the director, it shall be
lawful to fish for commercial purposes. . . for other legal
salmon from the second Monday of September to and
——s the thirtieth day of the following November,
except during the hours beginning 4:00 o'clock p.m. of
Friday and ending 4:00 o'clock p.m. of the Senter fol-
lowing. . .
By the terms of this statute, salmon fishing in Puget
Sound is open after the second Monday in September
unless closed by the regulations of the department. Here,
the department is authorized to perform a specific act, but
the statute contains in itself no guidelines or limitations.
These are found in RCW 75.08.012, which declares it to be
the duty of the department to protect the supply of fish.
A further specific direction is contained in the third pro-
viso of RCW 75.12.010. The proviso states:
And provided, That whenever the director determines
that a stock or run of salmon cannot be feasibly and
properly harvested in the usual manner, and that such
stock or run of salmon may be in danger of being wasted
and surplus to natural or artificial ro require-
ments, the director may maneuver units of lawful gill net
and purse seine gear in any number or equivalents at his
discretion, by time and area, to fully utilize such har-
vestable portions of these salmon runs for the economic
well being of the citizens of this state,. . .
(Italics ours.)
By this proviso the department is given an affirmative
duty to determine whether there are salmon available thet
are surplus to natural or artificial spawning requirements
and, if so, to authorize the harvesting of this surplus, so as
to fully utilize the harvestable portions for the economic
well-being of the citizens as a whole.
[1] Reading those statutes together, it will be seen that
the department has the statutory duty to authorize the
harvesting of salmon not required for natural or artificial
spawning. It is clear, therefore, that the department may
restrict the harvesting of salmon by the commercial fisher-
men only to the extent that no surplus exists and that the
restriction is necessary to prevent the impairment of the
supply of salmon.
Supporting the conclusion that the department is
authorized to act for conservation purposes only is the fact
that there is no other statute regulating commercial fishing
which contains any substantive directive to the Department
of Fisheries.
An additional expression of legislative intent that the
department's activities should be designed to conserve fish
is found in the final paragraph of RCW 75.08.012.
For the pur of conservation, and in a manner consis-
tent therewith, the department shall seek to maintain the
© 6 en RP ty >
D—7
economic well-being and stability of the commercial fish-
ing industry in the state of Washington.
It has been suggested that RCW 75.08.080 provides
authority for the department to act for purposes other than
conservation. This section provides, insofar as pertinent:
The director shall investigate the habits, supply and
economic use of, and classify, the food fish and shellfish
in the waters of the state and the offshore waters, and
from time to time, make, adopt, amend, and promulgate
rules and regulations as follows:
There follows a series of paragraphs requiring the director
to regulate fishing areas, gear, disposal of fish, landing of
fish, destruction of predators, and the prevention and sup-
pression of disease; also to specify types of fish which may
be taken and reports which must be made; and the kinds of
uses which may be made of particular fish.
RCW 75.08.080 delineates the methods by which the
department shall comply with the guidelines set forth in
RCW 75.08.012. Nowhere does the section authorize the
director to allocate fish among competing claimants for
purposes other than conservation. It is obvious that all of
the regulations required or authorized are directed to the
purpose of conservation.
It is evident that the department's construction of the
statutes is the same as ours. There has been introduced at
its instance in the last two sessions of the state legislature,
legislation which would grant the department this authority
to allocate fish among Indians and non-Indians. The most
recent bill introduced was House Bill No. 1334, which died
in committee in the 1976 session.
As recently as Decémber 11, 1976, the Tacoma News
Tribune reported that the Director of Fisheries said he
would ask the legislature for the right to allocate fish and
the power to set different fishing seasons for non-Indians
and treaty Indians. A reasonable inference would appear to
be that the department recognizes that it does not have the
statutory authority to allocate fish to treaty Indians or to
non-Indians.
[2] But were we to assume that the Department of
Fisheries has the authority to adopt regulations designed
for the purpose of allocating fish among competing claim-
ants, we would be confronted by constitutional provisions
which stand in the way of its doing so in a manner which
discriminates among fishermen of the same class.
Since Indians are citizens of the United States and of
this state—and not citizens of a foreign power—they are
subject to the constitutions of these governments. The
restrictions which these documents place upon governmen-
tal action apply to actions taken with regard to these citi-
zens. Thus, they can neither be denied equal protection of
the laws nor granted special privileges and immunities.
Classification which distinguishes between commercial and
noncommercial fishermen has a reasonable basis in fact,
which is related to the legitimate governmental purposes of
conservation and promotion of the economic welfare of the
state. Distinctions between fishermen based upon their race
or ethnic background are not proper. Treaties protecting
Indian rights in the state's natural resources should be read
so as to harmonize their provisions with constitutional
mandates if this can reasonably be done. We think the
construction which this court placed upon the words "in
common with" in the case of Department of Game v.
Puyallup Tribe, Inc., 86 Wn.2d 664, 548 P.2d 1058 (1976),
achieves this purpose, and accords with the intent
expressed in the treaties.
There remains the question whether federal courts can
order state agencies to act beyond their authority as
defined by state law.
[3] The United States Supreme Court has stated that a
federal court will not compel governmental officers to do
any act which they are not authorized to do by laws of the
state from which they derive their power. Supervisors v.
United States, 85 U.S. (18 Wall.) 71, 21 L. Ed. 771 (1873);
United States v. County of Clark, 95 U.S. 769, 24 L. Ed.
545 (1878); Missouri ex rel. Laclede Gas Light Co. uv.
Murphy, 170 U.S. 78, 42 L. Ed. 955, 18 S. Ct. 505 (1898).
= We et enero ee
Petes ot Shut.
Bae RE, Ai ae hee obese Phat Ate
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D—9
In Murphy the court stated at page 95:
_Mandamus lies to compel a party to do that which it i
his duty to do, but can confer no new outherity, oe 'the
party to be coerced must have the power to perform the
And following on page 99, the court stated:
The street commissioner had no power under the char-
ter and ordinances to issue the permit requested in the
absence of the assent of the board of public improve-
ments, which had general control; and the court could
not command him to do that which it was not his official
duty to perform.
(Italics ours.)
In Brown v. Environmental Protection Agenc , 521 F.2d
827 (9th Cir. 1975), the Court of rom iain the
relationship of federal and state governments quoted at
pages 841-42 with approval the following statement from
Hart, The Relations Between State and Federal Law, 54
Colum. L. Rev. 515-16 (1954):
Judicial mandates to non-judicial state officers to
enforce either primary or remedial duties requiring the
performance of affirmative acts are relatively infre-
quent. Lower federal courts may prohibit state officers,
in their individual capacity, from taking action under
color of office in violation of law. But an action to
compel the performance of an affirmative act would
encounter, ordinarily, the bar of the Eleventh Amend-
ment. Whether a writ of mandamus to compel perfor-
mance of a ministerial duty would be re adel @ as an
action against the state is not altogether clear. But it is
a that a practice of issuing such writs to state
officers has never become established.
The court further pointed out at page 841:
The Constitution counts upon the necessary partici-
pation of the states in the electoral process nat by
direct command but by the incentive of not losing the
opportunity of participation. In similar fashion Con-
gress now elicits desired affirmative performances from
the states by attaching them as conditions to the
receipt of federal grants-in-aid. If we search the Con-
stitution for provisions which have the appearance of
D—10
affirmative requirements, two of the most striking are
those which for the surrender of fugitive slaves and
fugitives from justice. But the first was disembowelled
by the tour de force of v. Pennsylvania, [41 U.S.
(i6 Pet.) 539, 10 L.Ed. 1060], and the second was flatly
held, in Kentucky v. Denison [65 U.S. (24 How.) 66, 16
L.Ed. 717], to be judicially unenforceable. "And we
think it clear,” said Chief Justice Taney in the latter
case, "that the Federal Government, under the Consti-
tution, has no power to impose on a State officer, as
such, any duty whatever, and compel him to perform
it." Taney's statement can stand today, if we accept
[sic] from it certain primary duties of state judges and
occasional remedial duties of other state officers. Both
exceptions, it will be observed, involve enforcement
through the orderly and ameliorating forms of the
judicial process. In any event, experience with the
exceptions does little to bring into question the princi-
ple of the rule.
The respondents argue that a federal district court may
require a state agency to take affirmative action regardless
of the agency's statutory authority. The case upon which
they rely is Griffin v. County School Bd., 377 U.S. 218, 12
L. Ed. 2d 256, 84 S. Ct. 1226 (1964). In that case the dis-
trict court had issued an injunction requiring the court
supervisors to levy taxes in order to provide for desegre-
gated schools. The United States Supreme Court, in an
opinion upholding the validity of the order, recognized the
power of the official to act in accordance with both state
law and the court's order saying that the district court's
injunction requiring "[s)upervisors to exercise the power
that is theirs to levy taxes" and operate schools on a non-
discriminatory basis was properly issued. Griffin v. County
School Bd., supra at 233.
The cases cited therein involved actions by state officers
or agencies which interfered with federal constitutional
rights, and in each case the district court issued injunctions
enjoining said officers or agencies from engaging in such
interference. None of said cases required the state officers
or agencies to take affirmative action.
—— ae
|
D—11
In other cases cited by the respondents, the state officials
or agencies ordered by the federal courts to take action, had
the power under state law to comply with the federal court
order.
The courts have been consistent in recognizing that a
state official cannot be compelled to exceed his authority.
The court in Bradley v. School Bd., 51 F.R.D. 139, 142
(E.D. Va. 1970), when requested to order affirmative action
by a state official, said:
To be sure, state officials may only be directed, in ful-
fillment of this duty, to use those powers granted to them
by state law. For this reason the relief which may be
demanded of state, as opposed to local, officials is
restricted . . . In each case, however, the obligation is
ery ganas with the scope of the power conferred by
state law.
In Wright v. County School Bd., 309 F. Supp. 671 (E.D.
Va. 1970), the court discussed the scope of a district court's
power to effectuate desegregation of a district's schools. At
page 677 it said:
[A] court will only order a — official to perform or
refrain from certain acts which are within the powers
conferred upon him by law, Bell v. School Board of
Powhatan County, 321 F.2d 494 (4th Cir. 1963), and will
deny relief when those parties before it are not fully
empowered, under state law, to take the action
— Thaxton v. Vaughan, 321 F.2d 474 (4th Cir.
It is the duty of judges to declare and not to make law.
Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct.
2607 (1973).
The reason for this restriction is eloquently set forth in
the opinion of Justice Harlan in Oregon v. Mitchell, 400
U.S. 112, 203, 27 L. Ed. 2d 272, 91 S. Ct. 260 (1970), where
he stated:
[T}he federal judiciary, which by express constitutional
ae eo is appoin for life, and therefore cannot be
eld responsible by the electorate, has no inherent gen-
eral authority to establish the norms for the rest of soci-
ety. It is limited to elaboration and application o/ the
D—12
recepts ordained in the Constitution by the political
canenmantetivan of the le. When the Court disregards
the express intent and understanding of the Framers, it
has invaded the realm of the political process to which
the amending power was committed, and it has violated
the constitutional structure which it is its highest duty to
protect.
These principles of federalism were followed most
recently in Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561,
96 S. Ct. 598 (1976), when the Supreme Court reversed a
lower federal court's order supervising the handling of citi-
zen complaints within a local police department even
though constitutional rights had been violated. The court
stated, at pages 379-80:
The District Court's injunctive order here, significantly
revising the internal procedures of the Philadelphia
police decrement, was indisputably a s limitation
on the department's “latitude in the ‘dispatch of its own
internal affairs.'”
Thus the principles of federalism which io such an
important part in governing the relations between
federal courts and state governments, though initially
expounded and perhaps entitled to their greatest weight
in cases where it was sought to enjoin a criminal prose-
cution in progress, have not been limited either to that
situation or indeed to a criminal proceeding itself. We
think these principles likewise have aponee ility where
injunctive relief is sought, not against the judicial branch
of the state government, but against the judicial branch
of the state government, but against those in charge of an
executive branch of an agency of state or local govern-
ments such as respondents here. Indeed, in the recent
case of Mayor v. Educational Equality League, 415 U. S.
605 (39 L. Ed. 2d 630, 94 S. Ct. 1323] (1974), in which
rivate individuals sought injunctive relief against the
ayor of Philadelphia, we expressly noted the existence
of such considerations, saying: "There are also delicate
issues of federal-state relationships underlying this case.
Id., at 615.
D—13
Contrary to the District Court's flat pronouncement
that a federal court's — power to “supervise the func-
tioning of the police department .. . is firmly estab-
lished,” it is the foregoing cases and principles that must
govern consideration of the type of injunctive relief
granted here. When it injected itself b injunctive decree
into the internal disciplinary affairs of this state agency,
the District Court departed from these precepts.
The judicial determination of the extent of a state offi-
cial's authority to act is solely and exclusively within the
jurisdiction of the state courts. Boal v. Metropolitan
Museum of Art, 19 F.2d 454 (2d Cir. 1927), cert. denied,
275 U.S. 565, 72 L. Ed. 429, 48 S. Ct. 122 (1927); 21 C.J.S.
Courts § 524 n.34 (1940). Thus, as we have already
observed, the Department of Fisheries is authorized only to
promulgate regulations for conservation purposes. It cannot
act to comply with a federal court order which imposes
upon it a duty outside its statutory authority.
[4] With respect to the weight to be given to the deci-
sion in United States v. Washington, 384 F. Supp. 312
(W.D. Wash. 1974), it must be remembered that, long
before that case came before the federal trial court, the
Washington court system had been called upon to interpret
the same treaties. On August 15, 1965, the Superior Court
for Pierce County passed upon the rights of Indians claim-
ing under the Medicine Creek treaty, both as to steelhead
fish and salmon. This court in Department of Game v.
Puyallup Tribe, Inc., 70 Wn.2d 245, 422 P.2d 754 (1967),
and Department of Game v. Kautz, 70 Wn.2d 275, 422 P.2d
771 (1967), began a series of opinions which were to be
considered by the United States Supreme Court on two
occasions, by the Superior Court on three occasions, and by
the Washington* State Supreme Court on two additional
occasions. (See Puyallup Tribe v. Department of Game,
391 U.S. 392, 20 L. Ed. 2d 689, 88 S. Ct. 1725 (1967):
Department of Game v. Puyallup Tribe, 414 U.S. 44, 38 L.
Ed. 2d 254, 94 S. Ct. 330 (1973); Department of Game v.
Puyallup Tribe, Inc., 86 Wn.2d 664, 548 P.2d 1058 (1976).)
D—14
In Department of Game v. Puyallup Tribe, Inc., supra at
678-79 (1976), we carefully examined both the treaties and
the United States Supreme Court decisions that have been
rendered concerning the Medicine Creek treaty and other
Indian treaties specifically and treaty rights generally. It
was said: os
lude therefore that a proper interpretation o
oat —s of Medicine Creek permits the State to pro-
mulgate conservation regulations meeting appropriate
standards that affect all citizens, Indian and non-Indian,
equally. However, such regulations cannot deny the Indi-
ans access to their usual and accustomed fishing places,
nor can they restrain Indian fishing at those laces
except to the extent the regulations restrain the fishin
rights of all state citizens, e.g., regulations as to time an
manner of fishing, size of catch, etc.
This interpretation finds support in the decisions rend-
ered by the United States Supreme Court in 1967 and 1973.
In Puyallup Tribe v. Department of Game, supra (1967),
the United States Supreme Court stated, at page 398:
[W]e see no reason why the right of the Indians may not
also be regulated by an appropriate exercise of the police
power of the State. The right to fish “at all usual and
accustomed” places may, of course, not be qualified by
the State, even though all Indians born in the United
States are now citizens of the United States... . But
the manner of fishing, the size of the take, the restriction
of commercial fishing, and the like may be regulated by
the State in the interest of conservation, provided the
regulation meets a standards and does not dis-
criminate against the Indians.
Accord, Department of Game v. Puyallup Tribe, supra
(1973).
This court, in Department of Game v. Puyallup Tribe,
Inc., supra at 682 (1976), stated:
[I]t is also inconceivable that either the tribe or the gov-
ernment intended the treaty to create any rights beyond
the natural run .. . This plain language demonstrates
that the rights secured i e tribe _— the — =
artifici ropaga su urces .
phoney e Supreme a- Fidicated in Puyallup II
ee ee ee ed
ee eee ee ee en ae
.
;
:
D—15
goa Er of Game v. fy Tribe, 414 U.S. 44, 38
. Ed. 2d 254, 94 S. Ct. 330 (1973)] that this result is
correct. The majority opinion made no comment at all on
the issue, ‘ut the concurring opinion of Mr. Justice
White stated that "the Treaty does not obligate the State
of Washirgton to subsidize the Indian fishery with
planted fish paid for by sports fishermen." Puyallup II at
49.
Thus prior to the decision of United States v.
Washington, supra, there had been a long development of
case law, exhibiting an approach by the United States
Supreme Court, which, while it was more liberal in its
interpretation than was this court, always recognized legiti-
mate state interest in the conservation of its natural
resources and never purported to find in the treaties a pro-
vision giving the Indians a right to allocations.
We are asked to accede to the federal district court's
interpretation of the Medicine Creek and other Indian
treaties, whereby it found that treaty Indians have the right
to 50 percent of the salmon runs, plus fish for ceremonial
and subsistence purposes. It appears that, if this ruling is
given effect, non-Indian fishermen will be required to
refrain from fishing until the Indians have harvested 50
percent of the fish runs, plus an undetermined additional
number of fish.
Being cited no authority for the proposition that federal
district courts have exclusive jurisdiction to construe Indian
treaties—treaties which affect important interests of the
state—we adhere to our own interpretation of the treaty.
This interpretation, we believe, results in fairness and jus-
tice to all fishermen. It is consistent with the common
understanding and practice since the treaties were signed
and up until the decision of the federal district judge in
United States v. Washington, supra. Under our interpre-
tation, treaty Indians have always been afforded the same
opportunities as non-Indians to fish commercially by troll-
ing, purse seining, gill netting, or reef netting, and to fish
for recreational and other purposes. In addition, they have
D—16
been exempt from the payment of license fees which a non-
treaty Indian must pay. See Tulee v. Washington, 315 US.
681, 86 L. Ed. 1115, 62 S. Ct. 862 (1942). And further, state
regulations have been subject to the requirement that there
be reasonableness applied to treaty Indians. See State v.
McCoy, 63 Wn.2d 421, 387 P.2d 942 (1963).
We cannot ignore the facts that the holding of the dis-
trict court has severe economic effect on many nontreaty
fishermen; that it will result in the enrichment of some
individual treaty Indian fishermen, but will not necessarily
result in economic benefit to the tribal units; that it has
caused discontent among nontreaty Indians; that it has
caused hostility between the treaty and other fishermen,
and has jeopardized the good relations heretofore existing
among these parties; and that it has resulted in violence
and violations of the law. But beyond all of this, it has
threatened the survival of the fish runs. Already, the steel-
head runs in many of the rivers have been seriously
damaged. For example, the Skagit River, which had been
the largest steelhead producer in the state, has been
depleted to the point that it ranks seventh, and the non-
treaty fishing season has been cut from 5 months to 3
months.
All of these facts attest to the soundness of our interpre-
tation of the treaty provisions. They dictate that we should
adhere to that interpretation. Our adherence to the deci-
sion in Department of Game v. Puyallup Tribe, Inc., 86
Wn.2d 664, 548 P.2d 1058 (1976), makes it unnecessary to
consider the petitioners’ further contention that treaty
Indians are not entitled to a specified percentage of hatch-
ery fish.
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
D—17
that each should be given an equal opportunity to
within lawful statutes and regulations. aaa re
Wricut, C.J., HAMILTON, and BRACHTENBACH, JJ.. a:
ARMSTRONG, J. Pro Tem., concur. avai
Horowirz, 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), affd,
520 F.2d 676 (9th Cir. 1975). Certiorari was denied by the
Supreme Court of the United States, 423 U.S. 1086, __ L.
—— —., 96 S. Ct. 877 (1976).
é petitioners, inter alia, rely heavily on Departme
Game v. Puyallup Tribe, Inc., 86 Wn.2d 664, 548 P.2d ph
(1976), for its interpretation of the treaty Indian 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 and 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 prop-
erly 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 partic-
ularly at page 416, held that the Department of Fisheries
and its director had the authority and were indeed obli-
gated under the supremacy clause to refrain from violating
D—18
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 anad-
romous 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 actions 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 manage-
ment 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
RC lest 20 er CANES oh Abate tine i Oe
D—19
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 fed-
eral 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 uv. 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, peti-
tioners 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 Depart-
ment 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 imposi-
tion 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
D—20
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 its 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 r tions only for conservation p . 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 opportu-
nity to fish within lawful statutes and regulations.
That the interpretation of the Washington statutes is in
conflict with United States v. Washington, supra, and par-
ticularly 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 indi-
rection 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.
BBS oleh eed
Oe ee ee ee
D—21
The same reasons that prevent tis court from issui
writ of mandamus to the Department of Fisheries pry he
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 pro-
ceedings 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 Urter, JJ., concur with Horowirz, J.
STAFFORD, J. (concurring with Justice Horowitz)—I con-
cur with the opinion of Justice Horowitz. The Puget Sound
Gillnetters Association concession that "(wjhether or not
the decision of the federal court [United States pv.
Washington, 384 F. Supp. 312 (W.D. Wash. 1974), affd
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
IIT) 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 cit-
izens of the Territory.” 10 Stat. 1133.
As a result, conflicting interpretations have caused the
State and federal courts to drift into positions of direct
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 inter-
pretation 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.
Horowrr7z, J., concurs with STAFFORD, J.
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-—.
APPENDIX E
THE SUPREME COURT OF WASHINGTON
No. 43642
ORDER
GRANTING PETITION FOR REHEARING
WASHINGTON STATE COMMERCIAL.
PASSENGER FISHING VESSEL
ASSOCIATION.
Respondent,
THOR ‘TOLLEFSON, ET AL.
Appellants.
WASHINGTON KELPERS ASSOCIATION,
Respondent,
THOR TOLLEFSON, ET AL.
Appellants.
The Court having decided by a vote of five to four th
appellants’ petition for rehearing should be granted,
It is ordered that the petition be and it hereby is granted, and
that the cause be set for rehearing En Bane at I te
Dated this 4th day of November. 1976.
at the
at a later date.
/s/ Charles T. Stafford.
Chief Justice e
87 Wni2d 417
APPENDIX F
WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL
ASSOCIATION, Respondent, v. THOR TOLLEFSON, ET AL,
Appellants.
WASHINGTON KELPERS ASSOCIATION, Respondent, v. THOR
TOLLEFSON, ET AL, Appellants.
{1} Appeal and Error—Decisions Reviewable—Moot Questions—Ques-
tions of Public Import—Incomplete Development. An appellate
court will not consider a moot case on the ground that it presents
recurring issues of substantial public interest which require an
authoritative determination for the future unless the questions
which are necessarily and inherently involved in the case are
adequately developed or argued.
[ Note: Only 3 Justices concur in the above statement. ]
Starrorp, C.J., and HAMILTON, J., concur in the result only; UTrTer,
BRACHTENBACH, and HorowtrrTz, JJ., and Wren, J. Pro Tem., dissent by
separate opinion; DoLLiver, J., did not participate in the disposition of
this case.
Appeal from a judgment of the Superior Court for Thur-
ston County, Nos. 50370, 50552, Gerry L. Alexander, J.,
entered January 23, 1975. Dismissed.
Actions challenging the validity of certain state fishing
regulations. The defendants appeal from a judgment in
favor of the plaintiffs.
Slade Gorton, Attorney General, and James M. Johnson,
Assistant, for appellants.
Richard W. Pierson (of Thom, Mussehl, Navoni, Hoff,
Pierson & Ryder), for respondents.
ROSELLINI, J.—-This declaratory judgment action was
brought to obtain a ruling that certain fishing regulations
promulgated by the Department of Fisheries for a period
beginning June 15, 1974, were invalid. The Thurston
County Superior Court found as a fact that the regulations
in question were adopted solely as a result of the decision
by Federal District Judge George C. Boldt, Western Dis-
trict of Washington at Tacoma, in United States v. Wash-
ington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d
676 (9th Cir. 1975), cert. denied, ..... U.S. —-., 96 S .Ct.
877, ...... L. Ed. 2d .......... (1976), and not “in furtherance of”
RCW 75.08 et seq., the statutes defining the powers and
duties of the Director and the Department of Fisheries.
Upon this finding, the court concluded that the regulations
were beyond the authority of the Director.
The court also held the regulations invalid on other
grounds.
It is acknowledged that the regulations in question have
since been superseded and are no longer of any force or
effect. The Director, however, urges the court to consider
the question whether the powers conferred in the cited
statute include the power to regulate fishing in the waters
under its jurisdiction with the object of making a greater
number of fish available to the Indians at their usual and
customary fishing grounds, in compliance with the order of
Judge Boldt in the referenced decision.
[1] Statements of counsel upon oral argument to this
court indicated that regulations which have since been pro-
mulgated are more acceptable to the Commercial Passenger
Fishing Vessel Association (the only respondent participat-
ing in the appeal), from which it might be inferred that
future litigation between these parties upon this question
may not be threatened. But the Director maintains that the
question of his authority to allocate fish in response to the
federal court decision is a recurring one, of vital impor-
tance to his department and to the people of the state of
Washington, which needs resolution. He calls our attention
to instances in which this court has proceeded, in cases
otherwise moot, to consider questions of substantial public
interest, upon which an authoritative determination was
needed for the future guidance of public officers, and which
were of a recurring nature. Examples of such cases are
Hartman v. State Game Comm’n, 85 Wn.2d 176, 532 P.2d
614 (1975); Sorenson v. Bellingham , 80 Wn.2d 547, 496 P.2d
512 (1972); In re Elliott, 74 Wn.2d 600, 446 P.2d 347 (1968),
ee Oe ie ee a ee
¥
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and National Elec. Contractors Ass’n v. Seattle School Dist.
1,66 Wn.2d 14, 400 P.2d 778 (1965).
While each of these elements is to be found here, there
are other considerations which make it undesirable that we
treat this case as an exception to the general rule that the
court will not render advisory opinions. In In re Elliott,
supra, we recognized that one of the important factors de-
terring the courts from issuing advisory opinions is the risk
that the question may not have been adequately developed
or argued. Here, vital questions inherent in the case have
not been raised, and much less argued. In all the cases
where this court has rendered advisory opinions, the ques-
tion decided has been adequately briefed and vigorously
argued. In State ex rel. Distilled Spirits Inst., Inc. v. Kin-
near, 80 Wn.2d 175, 492 P.2d 1012 (1972), the importance of
adequate briefs and arguments was also noted. And in
State ex rel. O’Connell v. Dubuque, 68 Wn.2d 553, 558, 413
P.2d 972 (1966), we said that before an advisory opinion
will be rendered, the proceedings must be “advanced with
sufficient militancy to engender a thorough research and
analysis of the major issues.”
The questions presented here are indeed serious and in-
volve a conflict between the state and federal courts in this
jurisdiction. Inherent in the superior court’s conclusions
was a theory that the federal court could not make an
effective order which would place upon an agency of the
state a mandatory duty which was not within its statutory
powers. The court expressed the belief that the order was
not intended to create such a duty. Nevertheless, the order
of the federal court by its terms imposes on the state an
affirmative duty to make a designated portion of the fish in
the waters of the state available to the treaty Indians who
were parties to that action.
The parties to this appeal have chosen to treat the case as
though the questions that seemed paramount to the trial
court were not necessarily involved. The Director argues
that the statutory grant of power is broad enough to permit
him to manage the fish for purposes other than
conservation,' although he does not su~gest that his depart-
ment has any need for such additional powers except to
meet the demands of the federal court order.
He also argues that in exercising the power to manage
the fish for conservation purposes, he can consider the in-
creased Indian fishing resulting from the federal court deci-
sion as a “mortality factor.” This argument, however, does
not take into account the fact that in making more fish
available in the inland waters, as his regulations were de-
signed to do, he was in fact contributing to the same mor-
tality factor. He does not suggest that he would have any
reason to increase fish mortality, absent a statutory or
court-ordered duty to do so.
The Director does not argue the question whether, as-
suming his powers do not include the power to allocate fish
for purposes other than conservation, he can nevertheless
be forced to regulate the taking of fish for such purposes by
court order. The respondent assumes that the Director has
no such power or duty but offers no authorities in support
of the court’s theory.
To answer this question, we would be called upon to
consider further the question whether a court may order a
legislative body to enact a law or regulation (remembering
that, in promulgating its regulations, the Department of
Fisheries
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