# Petition — Washington v. Washington State Commercial Passenger Fishing Vessel Assn. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0860%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 443 U.S. 658 ## Text ~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 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 CdD Ad Se ee ee et SRP SPOT i 6. Waite. ice ees 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. ee SE Oe Cee evete Oe aed ~ a eee ee ee ee eee Ce Ei bet 1° thew -—. 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 ¥ A 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 is exercising a delegated power of the legislature and noting that the order is directed to the state itself), and particularly whether a federal court can order a state legis- lative body to take affirmative action.’ Also, can a court properly direct an administrative agency’s exercise of its discretionary powers? Other questions which inhere in the resolution of this ‘See Hartman v. State Game Comm’n, 85 Wn.2d 176, 532 P.2d 614 (1975), to the contrary. *A related question is whether the Indian treaties contain any language which indicates an agreement cn the part of the United States or its successors in interest to take affirmative action to make fish available at Indian fishing grounds. This is a question not dealt with in the federal court opinion, although the court’s order would seem to reflect a finding that the language of the treaties was open to that interpretation. ST a a I eee a i complex problem arise. For example, was the federal court acting within its proper jurisdiction when it held that the treaty Indians are entitled to a specified percentage of the fish to be found in the waters of this state, or was it, under the guise of interpreting a treaty, actually either modifying or implementing the seme?’ If not, must the courts of this state nevertheless honor the decision and enforce its order, or may they with impunity disregard those portions which they deem to be implementations or alterations? Another question not considered in the briefs arises from the fact that this court has itself interpreted one of the treaties in question and has arrived at a conclusion as to its meaning which differs from that of the federal court. De- partment of Game v. Puyallup Tribe, Inc., 86 Wn.2d 664, 548 P.2d 1058 (1976). To which of these interpretations must the state agency respond? The resolution of this ques- tion cannot come from this court or from the federal dis- trict court, if no definitive authority upon the subject ex- ists. It must come from a higher court whose decisions are binding upon both of us. In short, this dilemma can be resolved only by the Supreme Court of the United States, which, we understand, has been asked to take jurisdiction of the cases involved and settle the question. Inasmuch as serious and controlling questions necessarily involved in any determination of the Director’s powers and duties with respect to the federal court order have been *The general rule appears to be that only the Congress can perform these functions. See 87 C.J.S. Treaties §§ 9, 15, 25 (1954): in The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71, 5 L. Ed. 191 (1821), where the court was asked to supply an omission in a treaty, Mr. Justice Story said: In the first place, this court does not possess any treaty-making power. That power belongs by the constitution to another depart- ment of the government; and to alter, amend or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be, on our part, an usurpation of power, and not an exercise of judicial functions. See S. Crandall, Treaties, Their Making and Enforcement (2d ed. 1916); and see Department of Game v. Puyallup Tribe, Inc., 86 Wn.2d 664, 548 P.2d 1058 (1976). F—6 ignored in the briefs, a gratuitous opinion would be inap- propriate and ill-advised. Taking into account the fact there is an imminent possi- bility that the United States Supreme Court will speak to one or more of these questions, such an opinion would also be premature. We therefore decline to retain jurisdiction. The appeal will be dismissed. HUNTER and WRIGHT, JJ., concur. SraFrrorp, C.J., and HAMILTON, J., concur in the result. Utter, J. (dissenting)—In legal controversies involving the validity of fishing regulations, the time between action and effect is usually so compressed that the issues are moot before the appellate process can be fully utilized. This was true in the present case. It is therefore of critical impor- tance for this court to resolve issues that are likely to arise again, if we can, consistent with our earlier decisions. The majority recognizes all the elements exist in this case to justify this court resolving the issues presented, even if the ease is moot. See Hartman v. State Game Comm’n, 85 Wn.2d 176, 532 P.2d 614 (1975). It refuses, however, to consider important issues involved in this appeal, raised by the parties and discussed in the briefs, stating, “vital ques- tions inherent in the case have not been raised, and much less argued.” I am completely unable to understand how this can justify our refusal to decide those issues which are fully briefed and properly before us, and which do not require consideration of the additional, peripheral questions raised by the majority. The fishermen of this state and the Department of Fisheries deserve whatever assistance this court can give them by clarifying issues likely to arise in future cases. This is particularly true where the lower court has ruled incorrectly, as I believe it has. Assuming the Director is bound by the court decrees requiring the State to provide certain fish to Indians, the issue presented is whether he has the authority under the applicable statutes to establish management regulations over other fisheries more completely within the control of ee PRS) Ace thw ee the State. The trial court erroneously concluded certain regulations promulgated by the Director were outside his authority. The court erred by failing to consider the full statutory authority of the Director and did not consider at all his specific authority to promulgate regulations. The trial court looked only to the authority of the Director specified in RCW 75.08.020, which states in part: “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, conservation, preservation, and management of food fish and shellfish.” Additional author- ity is found in RCW 75.08.080, which provides: 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: (2) Specifying and defining the areas, places, and wa- ters in which the taking and possession of the various classes of food fish and shellfish is lawful or prohibited. (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. The Director’s authority to control the increased Indian fishery is severely restricted both by our decisions and those of the federal courts. See Department of Game v. Puyallup Tribe, 414 U.S. 44, 38 L. Ed. 2d 254, 94 S. Ct. 330 (1973); State v. James, 72 Wn.2d 746, 435 P.2d 521 (1967). If the Director is unable to manage Indian treaty fishing, which is the subject of federal court decisions, and non-In- dian fishing as well, due to the trial court’s ruling in this case, the result is a complete lack of proper management leading to over-fishing of the resource. To prevent this he must be able to promulgate regulations in the one area in which he can still exercise control. The words “conservation” and “management” in the ap- plicable statutes are broad enough to encompass the princi- F—8 ples of allocation embodied in the challenged regulations. Allocation is an important factor in the conservation of fish runs. Where a resource is not presently plentiful enough to setisfy all needs, a restriction on withdrawal must be insti- tuted in order to conserve the renewable resource and in- sure its availability in the future. I dissent from the majority’s refusal to resolve important issues likely to arise in future litigation. I would reverse the judgment of the trial court and affirm the action of the Director. BRACHTENBACH and Horowitz, JJ., and Wren, J. Pro Tem., concur with UTTER, J. vir ina AA te Ad ll sas PPAR tena dca nat ne le a a Oe eae stat ts be Sak tk Fath oe bide APPENDIX G IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON, THURSTON COUNTY Nos. 50370 & 50552 JUDGMENT WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL ASSOCIATION, Plaintiff, VS THOR TOLLEFSON, Director of Washington State Department of Fisheries; WASHINGTON STATE DEPARTMENT OF FISHERIES: and STATE OF WASHINGTON, Defendants, and WASHINGTON KELPERS ASSOCIATION, Plaintiff, Vs. THOR TOLLEFSON, Director of Washington State Department of Fisheries; WASHINGTON STATE DEPARTMENT OF FISHERIES: and STATE OF WASHINGTON, Defendants. This matter having come on for trial before the undersigned Judge of the above entitled court, and the court having considered the records and files herein, evidence and testimony submitted at the time of trial, argument of counsel for all parties, briefs submitted on behalf of all parties, and having previously entered its Findings of Fact and Conclusions of Law, and_ plaintiff, Washington State Commercial Passenger Fishing Vessel Association, being represented by Richard W. Pierson of Thom, Mussehl, Navoni, Hoff & Pierson, and plaintiff, Washington Kelpers Association, being represented by Stephen J. Bean of Bean, Gentry & Rathbone, and the defendants, Thor Tollefson, Director of Washington State Department of Fisheries, Washington State Department of Fisheries, and State of Washington, being represented by Slade Gorton, Attorney General for the State of Washington, and Paul D. Solomon, Assistant Attorney General, now therefore, Ir Is HereEBY OrpeRED, ADJUDGED AND DECREED as follows: 1. That the court has jurisdiction over the parties and the subject matter of this lawsuit; G—2 2. That the “kelpers” are a group within a class of commercial troll-fishermen who fish predominantly within three miles of the coast who have not been treated equally; 3. That WAC 220-56-013 and -063 and WAC 220-24-020(4) exceed the statutory authority of the Director; 4. That WAC 220-24-020(4) constitutes a denial of equal protection of the laws as to the plaintiff group, Washington Kelpers Association; 5. That the regulations, WAC 220-56-013 and -063 and WAC 22()-24-020(4), constitute arbitrary and capricious action by the Director; 6. That the Department is permanently enjoined from the enforcement of regulations WAC 220-24-020(4) and WAC 220-56-013 and -063 for the 1974 season; 7. That said regulations are hereby declared to be invalid; and 8. That plaintiffs, Washington Charter Association and Washington Kelpers Association, recover costs and disbursements. Datep this 23rd day of January, 1975. s/ Gerry L. Alexander Judge ies aera ee ee 3 G—3 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON, THURSTON COUNTY Nos. 50370 & 50552 FINDINGS OF Fact AND CONCLUSIONS OF LAW WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL ASSOCIATION, Plaintiff, Vs. THok Touierson, Director of Washington State Department of Fisheries; WASHINGTON STATE DEPARTMENT OF FISHERIES: and STATE OF WASHINGTON. Defendants, and WASHINGTON KELPERS ASSOCIATION. Plaintiff, Vs. THOR ToLLerSON, Director of Washington State Department of Fisheries; WASHINGTON State DEPARTMENT OF FISHERIES: and STATE OF WASHINGTON, Defendants. FINDINGS OF FACT 1. That the plaintiffs, Washington State Commercial Passenger Fishing Vessel Association and Washington Kelpers Association, are groups of citizens who have associated for the purpose of supporting, enhancing and furthering the interest of charter boat fishing and small boat troll-fishing, respectively. 2. Membership of the Washington State Passenger Fishing Vessel Association (hereinafter called the Washington Charter Association) consists of skippers and owners of charter boats, owners of charter offices in the ports of Ilwaco, Westport and all Olympic Peninsula ports, including but not limited to Neah Bay, Sekiu, La Push, Agate Beach, Port Angeles and others. In addition, associate members of the Washington Charter Association conduct businesses affected by the charter boat industry. G—4 3. Members of the Washington Kelpers Association are small boat, day-trip, troll-fishermen, many of whom either fish to supplement their normal earned income, supplement their retirement income, or to provide funds with which to educate themselves. Members of the association do a predominate amount of their fishing within three miles of the shoreline of the State of Washington and along the coastal waters of the State of Washington. 4. The Washington State Department of Fisheries, hereinafter referred to as the Department, and Thor Tollefson, Direc.or of the Department, hereinafter referred to as the Director, exist pursuant to the laws of the State of Washington, to-wit: R.C.W. 75.08.020, which states in part as follows: “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, conservation, preservation, and management of food fish and shell fish. * Pies and in R.C.W. 75.08 et seq. 5. On February 12, 1974 Federal District Judge George C. Boldt, Judge of the Western District of Washington at Tacoma, rendered a decision cited at United States of America, et al, Plaintiffs, vs. State of Washington, et al, Defendants, Civil No. 9913 (hereinafter referred to as the Boldt decision); wherein Judge Boldt held (pursuant to the Treaty of Medicine Creek and other treaties) that the State of Washington must insure treaty Indian fishermen: (a) All the fish necessary for their reservation fishery, (b) Their personal use fishery, ic) Their ceremonial use fishery, (d) Fifty percent of the remaining fish which are harvested at their usual and accustomed areas if not otherwise harvested in state waters, and (e) An “equitable adjustment” to compensate the Indians for fish originating in their usual and accustomed area but harvested in areas outside the state’s jurisdiction (i.e., in the ocean and in state waters under International Pacific Salmon Commission regulations). 6. On March 22. 1974 Judge Boldt entered an order providing for an interim plan, paragraph 5 of which provides: -_ ° . “The defendants will make significant reductions in the non-Indian fisheries, all are necessary to achieve the ultimate objectives of the court’s decision without requiring mathemat- ical precision, but in making such reductions will do so consistent with the concept of permitting the full harvest of fish.” G—5 7. (a) On April 24, 1974 the Department, as a direct result of the Boldt decision, passed reyulations directly affecting both plaintiffs, solely as a result of the Boldt decision and ee i furtherance of the statutory enabling legislation cited in paragra h 4 above, which regulations would not have been ena ted % fc the Boldt decision. 7 olga any (b) The regulations WAC 220-56-013 and -063 and WAC 2 -24-020(4) were adopted after a consideration of alternatives and after a full public hearing in accordance with the procedural gigas of the Washington State Administrative Procedures 8 WAC 220-596-013 and -063, affected plaintiff Washington Charter Association, in that said regulations reduced the sport catch limit along Washington coastal waters from three yrs fish per sport angler per day. sion 9. WAC 220-24-020(4) applies to all commercial trollers. but affects the plaintiff Washington Kelpers Association in that (4) in its entirety, states as follows: “Tt shall be unlawful to take, fish for or possess salmon taken with troll-line gear for commercial purposes from within waters under Washington State jurisdiction.” . 10. The Department regulates Washington commercial trollers beyond three miles of the shore and coast in that it directly assumed jurisdiction over the Washington commercial trollers who are fishing beyond three miles with a prohibited type of gear and indirectly regulates beyond three miles in that the Department ager regulations affecting the landing of fish caught beyond see Ramen when they are landed within three miles in 11. Most commercially caught salmon caught within Washing- tons waters are caught by trip-trollers fishing in large boats rather than by the small-boat, light-tackle commercial fisherman known as a “kelper™ who does most of his fishing within three miles of shore on a day-trip basis. | ‘12. The Department did not enact, in an attempt to comply with the Judge Boldt decision, any regulation which would have affected the so-called trip-troller. , 133. One of the reasons the Director elected not to regulate the commercial fishery beyond the three-mile limit was because he believed such action would have an adverse economic impact on the State of Washington. 14. The plaintiff, Washington Charter Association, was directly and adversely affected by WAC 220-56-013 and -063 and the plaintiff. Washington Kelpers Association, was directly and adversely affected by WAC 220-24-020¢4). im G—6 15. During the time period that each of these regulations was in effect, prior to temporary injunctions being issued, each plaintiff suffered an economic impact as a result of the particular regulation in question affecting it and had the regulation or regulations remained in effect, without judicial intervention, each plaintiff association and its members would continue to have been adversely economically affected by the regulations in question. 16. Irreparable harm would result to each plaintiff if the regulations were held to be valid. 17. The Washington Charter Association was irreparably damaged during the time the Department had in effect the regulation which decreased the daily sport bag limit from three to two fish in Washington coastal waters from June 15 to June 17. 1974. in that, the charter boat fleet in both Ilwaco and Westport experienced a sharp decrease in numbers of sports fishermen carried aboard the charter boat vessels which necessitated a three to six week recovery period. 18. Many small-boat commercial fishermen, members of the Washington Kelpers Association, who fish predominantly within three miles of shore would be unable to continue in business were WAC 220-24-020(4) declared valid. 19. The small-boat, light-tackle commercial fisherman, commonly known as a “kelper™ fishes predominantly within three miles of the Washington coast and shoreline. 0). The “kelpers” are a group within a class of fishermen, separate and apart from the deep-sea or trip-troller type of fisherman and there is a factual difference in the methodology as well as the location of fishing between this special class of fisherman known as a “kelper” from other types of commercial fishermen. 21. The charter boat fleet in Washington coastal waters is regulated by the regulations promulgated by the defendant Department of Fisheries, the subject of this lawsuit, both within and bevond the three mile limit. The sport bag limit applies whether salmon are caught by sport fishermen within or beyond the three mile limit along the Washington coast. From the foregoing Findings of Fact the court now makes the following CONCLUSIONS OF LAW |. The court has jurisdiction over the parties and the subject matter of this lawsuit. 2 "The “kelpers” are a group within a class of commercial troll-fishermen who fish predominantly within three miles of the coast who have not been treated equally. om one se UE G—7 3. WAC 220-56-013 and -063 and WAC 220-24-020(4) exceed the statutory authority of the Director. 7 - W “8 220-24-020(4) constitutes a denial of equal protection e laws as to the plaintiff group, Washington Kelpers Association. sin - rhe regulations, WAC 220-24-020(4) and WAC 220-56-013 a “063, constitute arbitrary and capricious action by the irector and the Department of Fisheries. oa bes q he Department is permanently enjoined from the on orcement of regulations WAC 220-24-020(4) and WAC 220-56-013 and -063, for the 1974 season. . i. Said regulations are hereby declared to be invalid _ 8. The plaintiffs, Washington Charter ) W ashington Kelpers Association, disbursements. Association and recover costs and Darep this 23rd day of January, 1975. /.. , /s/ Gerry L. Alexander Judge —_— APPENDIX H UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA No. 9213 PRELIMINARY INJUNCTION STAYING STATE CouRT INJUNCTION AND ORDER IMPLEMENTING PRELIMINARY INJUNCTION UNITED STATES OF AMERICA, et al. Plaintiffs, STATE OF WASHINGTON, et al. Defendants. This matter having come on regularly before the Court on Plaintiffs’ motion for a preliminary injunction staying state court injunction and for an order implementing the preliminary injunction, and the Court having considered the memoranda. oral ‘argument of counsel and the record in this case, the Court makes the following Findings of Fact and Conclusions of Law and on the basis thereof, issues the following Orders: FINDINGS OF FACT 1. In an effort to assure plaintiff tribes their federally guaranteed treaty fishing rights and at the same time avoid unnecessary conflict with the State judiciary, the United States, and the plaintiff tribes on July 28, 1977 asked this Court to specifically determine and allocate a portion of the harvestable fish between treaty and non-treaty fishermen for the 1977-78 season, 2. This request was prompted by the Washington Supreme Court's determination that the Department of Fisheries had no authority to make such an allocation under State law and the decisions of that Court that the Director must affirmatively authorize the harvest of all fish not needed for propagation escapement and must do so on a basis that does not recognize treaty fishermen as a separate class whose distinct Federally secured rights are to be specifically protected. This Court thereupon issued a preliminary order on August 10, 1977 by which it assumed the responsibility for allocating the salmon runs between treaty and non-treaty fishermen, enjoined the State from ® H—2 authorizing or permitting harvest of the treaty fishermen’s share, and directed the Sta [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0860%3A01. Public record. Not legal advice.