Appendix — Washington v. Washington State Commercial Passenger Fishing Vessel Assn.

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

T seprome cour, 0. & I

FITTED -

JOINT APPENDIX] °C & [978

[ MICHAEL ROBAK, JR_CLERK

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1978

No. 77-983

STATE OF WASHINGTON, et al.

Petitioners,

Vv.

WASHINGTON STATE COMMERCIAL PASSENGER FISHING

VESSEL ASSOCIATION, et ai..

Respondents.

No. 78-119

STATE OF WASHINGTON, et al..

Petitioners.

Vv.

UNITED STATES OF AMERICA, et al..

Respondents.

No. 78-139

PUGET SOUND GILLNETTERS AssOciATION, et al.,

Petitioners,

UniTepD States District Court FOR THE WESTERN

DIsTRICT OF WASHINGTON, et al.

Respondents

ON WRITS OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

STATE PRINTING PLANT <> 3s OLYMPIA. WASHINGTON

PETITIONS FOR WRITS OF CERTIORARI FILED

January 9, 1978, July 21, 1978 and July 24, 1978

CERTIORARI GRANTED OCTOBER 16. 1978

eee, eee

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1978

No. 77-983

STATE OF WASHINGTON, WASHINGTON STATE DEPARTMENT OF

FISHERIES, and Its DIRECTOR,

Petitioners,

WASHINGTON StaTE COMMERCIAL PASSENGER FISHING VESSEL

ASSOCIATION and WASHINGTON KELPERS ASSOCIATION,

Respondents.

AND

STATE OF WASHINGTON, WASHINGTON STATE DEPARTMENT OF

FisHERIES, and Its Director,

Petitioners,

Vv.

PuGet Sounp GILLNETTERS ASSOCIATION, PHILIP SUTHERLAND,

Purse Seine VesseL Owners ASSOCIATION and FRANK

MARINKOVICH,

Respondents.

No. 78-119

STATE OF WASHINGTON, DEPARTMENT OF FISHERIES, and DoNALD

W. Moos, Its Director,

Petitioners,

UniTED STATES OF AMERICA,

Respondents,

Makau Tripe, Lower ELtwua Banp oF CLALLAM TRIBE, Port

GAMBLE BaNpb oF CLALLAM TRIBE, SUQUAMISH TRIBE, LUMMI

Tripe, Nooksack Trispe, and SwiNoMIsH INDIAN TRIBAL

COMMUNITY,

Intervenors-Respondents.

AND

STATE OF WASHINGTON, DEPARTMENT OF FISHERIES,

Petitioners,

UNITED STATES OF AMERICA, et al.,

Respendents.

No. 78-139

LNETTERS ASSOCIATION, et al., >

Pucet Sounp GIL iain

Vv.

Unirep States District CouRT FOR rHE WESTERN DISTRICT OF

WASHINGTON,

JOINT APPENDIX

Table of Contents

A. Washington State Court Proceedings

Testimony in Washington State Commerciul

Passenger Vessel Assn. v. Tollefson, 87 Wn.

2d 417 (1977) and 89 Wn. 2d 276 (1977):

Thor Tollefson, October 10, 1974 ..........

Dell Fender, second day..................

Robert W. Allen, second day ..............

Al Nyhus, Jr., second day.................

Charles Romaine, second day .............

Gail Schenk, third day ...................

Jasper Elton Lasater, fifth day ............

Samuel G. Wright, sixth day ..............

Record — Puget Sound Gillnetters v. Moos,

88 Wn. 2d 677 (1977):

Stipulated Record.......................

First Supplemental Stipulated Facts .......

Second Supplemental Stipulated Facts .....

B. Federal Court Proceedings.

U.S. v. Washington (9th Cir. 1975), 520 F. 2d

676 (9th Cir. Docket Nos. 74-2414, 74-2437,

74-2438, 74-2439, 74-2440, 74-2567, 74-2602,

oe EEE EER ENO en

U.S. v. Washington (Dist. Court decision

1974) 384 F. Supp. 312 (W.D. Wash. Docket

No. 9213)

bie ands awichh sama bbs oases vavks

OG re or awiedosauiee

Conclusions of Law... ......cccccccccccee

Declaratory Judgment and Decree .........

(March 22, 1974)

Rulings on Fisheries Questions

Per Reconsideration Motion ..............

Proposed Amendments and Rulings

_ ar ae ieee

ED diW/d aa dwn wieWbsénheeacd deni

Interim Plan and Stay Order Pending

Final Decision on Appeal.................

Page

Table of Contents (Cont.)

C. Testimony in U.S. v. Washington, 384 F. Supp.

312 (W.D. Wash. 1974).

James E. Lasater, July 9, 1973 and Septem-

DRIED conc ob etsned obhek0k544 be¥ eens

Carl M. Crouse, August 27-28, 1978 ........

Walter A. Neubrech, August 29, 1973.......

Barbara Lane, September 5-7, 1973 ........

Carroll L. Riley, June 29, 1973, September,

SE once ktapbubduneans tube eenecenwesks

Thor Tollefson, July 9, 1973, August 29,

Pere eer ee eee

Calvin Peters, September 10, 1973.........

Hiliary Irving, September 10, 1973.........

Joseph Andrews, September 10, 1973.......

Bill Frank, Jr., September 10,1973 ........

Benjamin Rueben Wright, September 11,

DT snus baunkehsdie peeeees Oaens.ae es

Chris Penn, September 12,1973 ...........

Joe De La Cruz, September 13, 1973 .......

Lena Coltee Hillaire, September 10, 1973 ...

Forrest L. Kinley, September 12, 1973......

D. Exhibits in U.S. v. Washington, 384 F. Supp.

312 (W.D. Wash. 1974) submitted in 1973.

Extracts, Webster’s English Dictionary, 1828

and 1862 Editions (Exhibit PL.-86).........

Report of George Gibbs to Captain McClel-

lan on Indian Tribes in Territory of Washing-

ton, March 4, 1854 (Ex. PL-9).............

Documents Relating to the Treaty of Decem-

ber 26, 1854, with the Nisqually, Puyallup

and Other Indians (Ex. PL-10) ............

Report of Isaac I. Stevens, Governor and

Superintendent of Indian Affairs to the

Commissioner of Indian Affairs, September

RE, BES GH. PEEP eve sccwivvccccceves

Letter from Governor Isaac Stevens to

George W. Manypenny, Commissioner of

Indian Affairs, December 30, 1854 (Ex. PL-

DceCeden + 66beRbbadenaesetesesuyenes

PEPE cv cccccccctencceesctevusesencess

Page

233

254

256

259

285

303

306

307

308

309

314

315

319

322

325

327

329

/ =

SAT

iii

Table of Contents (Cont.)

Documents Relating to the Negotiations of

the Treaty of Point-No-Point, January 26,

ee ai il oe ead s adnse ends

Documents Relating to the Negotiations of

the Treaty with the Makah Indians, January

31, 1855 (Ex. PL-16(b)) ..................

Journal of Operations of Governor Stevens,

Treaty with Indians East of the Cascade

Mountains in Washington Territory, May 22,

ee cutee eew eee

Letter from Governor Stevens to Captain

Fowler, Special Indian Agent, December 6,

UI i Ch

Report of Agent M. T. Simmons to Superin-

tendent Geary, July 1, 1869 (Ex. PL-41) ....

“On the Indians of Western Washington and

Northwestern Oregon,” by George Gibbs,

October 13, 1876 (Ex. G-4) ...............

Report of Superintendent C. H. Hale to

Commissioner of Indian Affairs, October 19,

SE eee ae

A Brief History of Salmon Fishing and

Canning Industry on Puget Sound by Robert

Thomas, May 1, 1973 (Ex. MLA-1) ........

Joint Biological Statement, May 11, 1973

PE ies abes ilu Getic yas 6d <ks'<

Average Annual Salmon Catch and Escape-

ment for Several Rivers on Which Treaty

Indian Fisheries Occur in Puget Sound and

Coastal Areas 1965-1970 (Ex. F-7) .........

Number and Percentage of Salmon Originat-

ing in Puget Sound and Coastal Rivers

Harvested by Indian Fishermen Annual

Average 1965-1970 (Ex. F-70) .............

Affidavit of Dr. Barbara Lane, Anthropolo-

SU chives aneeu oe ened toneecas Uweedseus

Anthropological Report on the Identity,

Treaty Status, and Fisheries of the Nisqually

Tribe of Indians, by Dr. Barbara Lane (Ex.

Aenea aig pee

Political and Economic Aspects of Indian-

White Culture Contact in Western Washing-

ton in the Mid-19th Century by Dr. Barbara

Lane, May 10, 1973 (Ex. USA-20)..........

Page

330

331

332

333

335

336

349

350

351

353

Table of Contents (Cont.)

Makah Economy Circa 1855 and the Makah

Treaty by Dr. Barbara Lane (Ex. USA-21) ..

Excerpts from the Findings of Fact of the

Indian Claims Commission in The Snogqai-

mie Tribe of Indians v. United States (May

Re CE iis oo 6n bie eos shave Vie

E. Post-1974 Decision; Motions, Orders, Injunc-

tions, Findings and Decisions in U.S. uv.

Washington (U.S. District Court No. 9213)

Motion for Intervention of Purse Seine

Vessel Owners Association, March 15, 1974. .

Ruling on Post-Decision Motions, March 22,

pier eae ee ae ae Aaa 2 eS ier Ge a

Order on Tribal Intervention, July 18, 1974 .

Memorandum Decision on Plaintiffs’ Re-

uest for Determination and _ Injunction,

Testeuties DED cinenaxdhanndds caneveaes

Order for Program to Implement Interim

Pe, CIO GA, BEE onc cccrcscesnnccces

Memorandum Decision Re Preliminary In-

junction No. 1, January 20, 1975...........

Preliminary Injunction 1975 Chum Fishing,

gg ee ee en ee

Order re Samish, Snohomish, Steilacoom,

Duwamish, and Snoqualmie Tribes’ Treaty

oe 8, ree

Order on Certain Questions re: Fisheries

Management, April 14,1976 ..............

Temporary Restraining Order, July 31, 1976.

Minute Order Modifying Temporary Re-

straining Order, August 5, 1976............

Minute Order, August 19, 1976............

Agreed Order, August 25,1976 ............

smo Re: 1976 Coho Fishery, September 6,

SE cK Suu ed Aen el anes sane cs ess

Master’s Report Re: Lummi Spring Chinook

Fishery (1977), May 17, 1977..............

Preliminary Injunction Re: Lummi Spring

Chinook Fishery (1977) and Lummi

Steelhead Fishery (1977), May 18, 1977.....

Motion for Temporary Restraining Order

and Permanent Injunction, July 18,1977 ...

Page

398

417

421

423

425

427

437

444

452

454

456

461

463

464

465

466

471

474

475

Table of Contents (Cont.)

Temporary Restraining Order, July 21, 1977.

Findings of Fact, June 6,1978.............

Conclusions of Law, June 6,1978..........

Order Re: Enforcement of Limitations on

Nontreaty Salmon Fisheries for 1978 and

Subsequent Seasons, June 6, 1978 .........

Preliminary Injunction Re Enforcement of

Limitations on Nontreaty Salmon Fisheries

4 esey and Subsequent Seasons, June 6,

Minute Order, June 15,1978..............

Motion for hee. Restraining Order Re

Straits Conservation Closure, October 13,

wh SUSEnGeh eae ehhastesuds send cases

Preliminary Injunction Re: Limited Chum

Fishery, November 3, 1978 ...............

F. Testimony Post-1974 in U.S. v. Washington

(U.S. Dist. Ct. No. 9213).

Donald McKernan, July 11,1975 ..........

George H. Boldt, October 25,1975 .........

Christopher Dlugokensky, August 8, 1977...

Phil'y R. Mundy, August 8, 1977 ..........

Wesley Whitner, August 8,1977...........

Gordon Sandison, August 8,1977..........

James M. Johnson, August 26, 1977........

Wayne C. Lewis, September 22, 1977.......

— “Sandy” Miller, September 22,

EE EG a eee Oud ck nce cece 6s

Samuel G. Wright, April 5-6, 1978 .........

Philip R. Mundy, April 6, 1978 ............

Arguments of Counsel, April 5, 1978 .......

Michael Grayum, August 21,1978 .........

Michael Grayum, July 20, 1978............

G. Affidavits, Reports and Exhibits Post 1974 in

U.S. v. Washington (U.S. Dist. Ct. W. Wash. No.

9213).

Notice of United States Withdrawal of

Approval of 1975 IPSFC Regulations, July

Soy OW GH MAUEMED cc ccccccccccccecns

Page

476

479

486

Table of Contents (Cont.)

Letter, Chairman of the IPSFC to_the

Director, Washington Department of Fish-

eries, July 22, 1975 (Ex. F-82).............

Letter, Chairman of IPSFC to Secretary of

State, July 22, 1975 (Ex. JX-10)...........

Letter, Chairman of IPSFC to Secretary of

State, July 25, 1975 (Ex. JX-11)...........

Fisheries Advisory Board Report Re: Illegal

Fishing, November 17, 1976 ...........+--

Fisheries Advisory Board ~—— Re: Lake

Washington Sockeye Fishery, July 18,1977 .

Highlights of 1976 Management of Puget

Sound Fisheries [Attached to Sam Wright

Affidavit of August 5, 1977] ...........505.

Affidavit of Samuel G. Wright, August 16,

LOTT wcccccvccssecccccsseene en ae

Affidavit of David C. Burns, August 19, 1977

(with attached charts) ........-ceseseeees

Fisheries Advisory Board Report re Aygree-

ment on Salmon Management Plan August

26, 1977 (with attachments) ..............

Affidavit of A. Dennis Austin Re: Illegal

Fishing Night of August 28,1977 ..........

[Plaintiffs’ Recitation of a] Summary of

Evidence Appearing of Record Re Illegal

Fishing and Washington Department of

Fisheries’ Failure to Lawfully Regulate,

April 4, 1976 ....occcss0nesash penne

Fisheries Advisory Board Report No. 78-56

Re: 1978 Chinook and Coho Fishery, July 19.

1978

Fisheries Advisory Board Report No. 78-77

Re: Puget Sound Nontreaty Coho Fishery,

Sentember 31, 1978 ...ccccccscuceueuneun

Fisheries Advisory Board Report No. 78-83

Re: Makah Fisheries for Chum Salmon,

October 0, 1978 . . ..000cessesneubeee

Fisheries Advisory Board Report No. 78-89

Re: Determination of the Appropriate Start-

ing Date of Chum Fishery, October 17, 1978 .

Report on the Snoqualmie Tribe by Dr.

Barbara Lane (Ex. USA-104) .............

Page

546

547

548

550

552

553

587

588

591

599

601

610

614

617

623

628

Vii

Table of Contents (Cont.)

Page

Exhibit PL-M-3 Washington Salmon Har-

san Statistics, 1974-1977, Tables 1 through

el Re ee se ee ee eo 2 2 ee

H. Decisions, Orders and Injunctions Printed in the

Appendices to Petitions for Certiorari Nos.

77-983, 78-119 and 78-139.

(1) State Court — Pet. No. 77-983:

Opinion — Washington State Com-

mercial Passenger Fishing Vessel

Assn v. Tollefson, 89 Wn. 2d 276, 571 App. B

634

Sees .............. No. 77-983

Order Denying Motion for Reconsid-

eration — Puget Sound Gillnetters

Assn., et al. v. Donald Moos, No.

44401, 88 Wn. 2d 677, 698, 565 P. 2d App.C

SaaS No. 77-983

Opinion — Puget Sound Gillnetters

Assn. v. Moos, 88 Wn. 2d 677, 565 P. App. D

See No. 77-983

Order Granting Petition for Re-

hearing — Washington State Com-

mercial Passenger Fishing Vessel

Assn. v. Tollefson and Washington

Kelpers Assn. v. Tollefson, No. App. E

eee No. 77-983

Opinion — Washington State Com-

mercial Passenger Fishing Vessel

Assn. v. Tollefson and Washington

Kelpers Assn. v. Tollefson, 87 Wn. 2d App. F

417, 553 P. 2d 113 (1977)........._. No. 77-983

Trial Court Judgment and Findings

of Fact and Conclusions of Law —

Washington State Commercial Pas-

senger Fishing Vessel Assn. v. Tollef-

son and Washington Kelpers Assn. v. App. G

Tollefson, Nos. 50370 and 50552 .... No. 77-983

(2) Federal Court — Pet. Nos. 78-119 and

78-139

Puget Sound Gillnetters Assn., et al.

v. United States District Court, et

al., 573 F. 2d 1123 (9th Cir. April 24, App. A-1

1978) (Washington Fishery Case).... Pet. 78-119

Vili

Table of Contents (Cont.)

Page

United States v. State of Washing-

ton, Department of Fisheries, 573 F.

2d 1118 (9th Cir. April 24, 1978) App. A-29

(International Fishery Case)........ Pet. 78-119

Fourth Supplemental Findings of

Fact and Conclusions of Law and

Decree re 1975 Fraser River Sockeye

and Pink Salmon Harvest, July 16, App. A-105

BD a tanedbscrndapsaweg te eekecne Pet. 78-119

Modifications and Additions to

Fourth Supplemental Findings of

Fact and Conclusions of Law and

Decree and Injunction Re 1975 Fraser

River Sockeye and Pink Salmon App. A-121

Harvest, August 6, 1975............ Pet. 78-119

Memorandum Order & Preliminary App. A-35

Injunction, August 31,1977 ........ Pet. 78-119

Memorandum Adopting Salmon App. A-61

Management Plan, August 31, 1977.. Pet. 78-119

Preliminary Injunction Staying State

Court Injunction and Order Imple- App. H

menting Preliminary Injunction — Pet. 77-983

United Stutes v. Washington, No. D-1,

9213, August 31, 1977.......... also:No. 78-139

Temporary Restraining Order re En-

forcement of 1977 Fisheries U.S. v. App. E-1

Washington, Filed 8/31/77 ......... Pet. 78-139

Findings of Fact and Conclusions of

Law Re: Enforcement of 1977 Fishe- App. A-79

ries Orders, September 27, 1977..... Pet. 78-119

Preliminary Injunction Re: Enforce- App. A-89

ment, September 27, 1977.......... Pet. 78-119

Preliminary Injunction Order, Octo- App. A-93

NE eS ch aiahdeensdieudeeess Pet. 78-119

Preliminary Injunction Staying Thur-

ston County Superior Court, October App. A-101

PR eS ee ee Pet. 78-119

Order for Service of Notices Regard-

ing 1978 Enforcement Hearing U.S. App. I

uv. Washington, 12/9/77 ............ Pet. 78-139

Table of Contents (Cont.)

Page

Preliminary Injunction re Enforce-

ment of Limitations on Nontreaty

Salmon Fisheries for 1978 and Subse-

= a ae of Fact,

onciusions of Law, U.S. v. Washing- ;

MEME ee © ee 78-199

Preliminary Injunction Re Swinom-

ish Indian Tribal Community Chi-

nook Fishery in Area Designated App. A-125

West Beach, August 8, 1978 .. 4 <euee Pet. 78-119

04 Oem be

]

Testimony in Washington State Commercial

Passenger Fishing Vessel Assn. v. Tollefson

[89 Wn.2d 276 (1977)]

Thor Tollefson (Director, Fisheries — October 10,

1974):

As a result of the Boldt Decision, Mr. Director, what

action did you take in meeting the obligations of

complying with the decision and order?

The first action we took had to do with the ocean

fishery. It was in two parts. We reduced the daily bag

limit of salmon from three fish to two and then we

closed the three mile strip off our coastal commercial

fishing.

Those are regulatory enactments that you did in fact

take, is that correct, as a result of the Boldt Decision?

That is correct. We followed the Washington

Administrative Procedures Act.

(p. 1-13, line 24—p. 1-14, line 6)

Director, what were the factors that you had in mind

in adopting the regulatory enactments that we are

concerned with in this proceeding, namely, the three

to two closure and the three mile strip closure? What

were the factors or what were you addressing yourself

to in passing the regulations?

A very simple one. We were under injunction by

Judge Boldt to significantly reduce non-Indian fishing

in order to make more fish available to the Indians so

they would have an opportunity to catch more.

(p. 1-23, lines 12-22)

Would it also be a fair statement of the chinook and

coho destined for the Puget Sound area that 50 per

cent of the fish are caught by the Canadian troll

fishery or more?

Ore

Yes, Canadians get off the west coast of Vancouver

Island a mile and a quarter for coho, a little more this

year, and three quarters of a mile for chinook.

Is it your concept that Judge Boldt in his decisior.

should control the Canadian fishery?

I am sorry.

Is it your concept Judge Boldt in his decision

allocating the number of fish in his decision does

control Canadian fishery?

That is unclear to me. He did say that the Indians

must abide by the Salmon Commission regulations.

Under the Salmon Commission regulations, there is

no possible way the Indians could harvest 50 percent

of the United States share of those fish. But to

specifically answer your question, it is a legal question

that is unresolved as far as I know.

Let me ask it this way. Were the Canadian troll

fisheries controlled in any way or reduced in any way

by Judge Boldt’s decision this year?

No.

(p. 1-52, line 8—p. 1-53, line 1)

What I am asking is if the Indians cannot catch 50 per

cent of the fish, is it necessary to insure they can

catch 50 per cent to prohibit commercial trolling

within three miles of shore on the information

available to you in your capacity?

There is no prohibition against their trolling in the

three mile limit.

I believe you passed a regulation.

Then we were enjoined.

That is what we are here about today. If the Indians

are not capable of catching 50 per cent of the fish, is it

necessary for you to make a rule which prohibits

commercial trolling within three miles of shore?

I can’t answer that until I know what the Indian catch

is.

ra? " en ee

cntalee

Bate et sn

You are the highest official of the State of

Washington. The buck stops with you. The informa-

tion available to you is the Indians can’t?

I don’t think they have the capability of catching 50

per cent. I said that. But we provided them with the

opportunity. That is our guideline.

(p. 1-58, line 30—p. 1-59, line 2)

Will you agree with me that the small boat

commercial troll industry has been economically hurt

as a result of the regulation which prohibits them

from fishing within the territorial waters of the State

of Washington?

Yes, they have been hurt.

I came up with the word “devastating” last Friday and

you agreed.

I don’t think I agreed with the word “devastating”. All

the non-Indian fisheries have been seriously damaged.

(p. 1-60, lines 9-18)

My question used the word “include.” You interpreted

the Judge Boldt Decision as requiring you to make 50

per cent of the artificially spawned salmon available

too?

All fish, yes.

Tue Court: Before we leave the subject, I don’t

mean to insert myself in the litigation, I would like to

have you ask the definition of “artificially spawned

salmon.”

(By Mr. Bean) Will you please define “artificially

spawned salmon?” .

Salmon spawned in hatcheries and in artificial

spawning channels.

Under control of the department?

Under control of the Department of Fisheries.

THE Court: In hatcheries?

, THe Witness: And in artificial spawning chan-

nels.

THe Court: Thank you.

>O> ©

(By Mr. Bean) These artificially spawning projects,

these are done under your supervision?

Yes.

Who funds these?

We get money from the general fund, state appropria-

tions, plus mitigation money from power companies

that build dams, and we get some federal money

under Public Law 88309 and 89304 for anadromous

fish enhancement programs.

(p. 1-71, lines 1-28)

Do you know how many licensed commercial troilers

there are in the state? Do you know that?

Not off the top of my head. Somewhere in the

neighborhood of 3,000, I would guess.

(p. 1-74, lines 25-29)

Dell Fender, Fisherman (second day):

My name is Dell Fender. I live in Westport,

Washington, Post Office Box 432, F-E-N-D-E-R.

What is your occupation, sir?

I am the owner of Salmon Charters, Inc., charter

office, restaurant, and we do business or make

reservations and charter service for 19 boats.

How long have you been in the Westport area and

charter business?

Over 20 years.

(p. 2-90, lines 5-13)

Can you describe how a charter office works with

respect to the 19 boats that are in your responsibility?

Well, mainly it is the more economical way for a small

businessman to operate. He pools his resources and

then all advertise as a group. You can get more

Q>o

Pe OP

advertising out for 14 boats than you can for 5 or 6

because you have a larger sum of money to do it with.

You can cover a larger area and also better service

customers by having more boats than a few boats.

With respect to your relationship to the people in

your group, how do they compensate you?

We get a percentage of the gross for the charter fee for

operational expense.

(p. 2-91, lines 14-26)

Tell us, based upon the 20 years you have had in

business and your experience of running the charter

office, what impact the two fish limit would have had

if it had been in effect the entire year this year?

When the public announcement came out the fish

limit was cut to two fish on June 15, we had two

cancellations for every one reservation we received.

Was that attibutable solely to the two fish limit?

This is their excuse.

If the two fish limit had continued in effect through

the entire season, how would your business have fared

with that problem?

If it would have declined the same percentage for the

total season it did for the two weeks after June 15, I

would hate tho think what it would be. It would be

disastrous.

What was the percentage of decline?

Over a third.

Over a third. I think it shows the decline for the two

weeks after June 15th —

Actually, our season starts picking up. We do real

good in May, but in June it starts to load out. By the

middle of a normal June we are usually booked pretty

solid from there on through July and August.

I see in July your figures on Exhibit 5 reflect the total

POoPro>

month of July being down 893 passengers as

compared with the previous year.

Yes.

To what do you attribute that decline?

Solely to the two fish limit.

Why do you have that opinion?

This is what the people told us when they called up

and cancelled out or in their letters they wrote

cancelling reservations.

(p. 2-92, line 16—p. 2-93, line 19)

Robert W. Allen, Operator, Deep Sea Charters

(second day):

= OF OPOPOHSPOYPOPO>

Robert W. Allen, Westhaven Drive, Westport.

What is your occupation, sir?

Charter office.

Where do you operate?

In Westport.

How long have you been in the charter business?

Since 1968.

What is the name of your charter office?

Deep Sea Charters.

How many boats operate out of your office?

Ten this year.

Can you give us some idea of the investment you have

in your charter operation?

Around $100,000.

Of the boats that fish in your fleet of 10 boats, what

sort of investment does that represent?

I would guess a quarter of a million dollars.

(p. 2-101, line 29—p. 2-102, line 15)

Re ome.

=> OF OPO >

PO >

What do your figures show with respect to the July

number of passengers for 1974 as compared with the

prior year?

Well, in July of ’73 we hauled 3,071 passengers and in

July of ’°74 we had 1,187, a decrease of 1,184.

Mr. Allen, can you tell us what your understanding is

of the reason why you experienced the decline in the

second and third weeks of June and the very drastic

decline in July of 1974?

Definitely the two fish limit.

Why do you say that?

My customers told me.

Are you the person who takes many of the

reservations, talks with the customers?

The biggest share of them.

Why did they say they wouldn’t fish if they could

catch two fish as compared with three fish?

They felt the investment of the trip wasn’t worth it.

Most of them realized that lots of times they don’t get

their limit, but they felt if they come down one time

and get skunked, they should have a chance to get

even with three fish the next time.

Do you have an opinion, then, as to what the effect

would be, or would have been this year, if the two fish

limit had been in effect the whole year?

I think it would have been awful bad.

Would you have been able to continue in business?

I don’t think so.

(p. 2-103, line 7—p. 2-104. line 4)

Al Nyhus, Jr. (second day):

Al Nyhus, Jr., N-Y-H-U-S, P. O. Box 351, Westport.

And your occupation, sir?

I am a charter boat owner-operator and pax’ —_ ner in

a charter office.

>O>O>

> ©

What is the name of the office?

Gull Charters, Inc.

They are in Westport?

Yes.

I take it you are a member of the Westport

Association, as are all the other officers who are in

Westport?

Yes, we are.

How many boats do you have in your charter office?

We have nine.

Would you describe your boat, please?

Well, I presently built a new boat last winter and it is

56 feet long. It will acccommodate up to 22 passengers

and it was also built for salmon fishing and also to try

to take advantage of the tuna fishing industry which

seems to be coming along.

What is represented by your investment?

I have presently invested in my vessel in excess of

$100,000.

(p. 2-108, line 30—p. 2-109, line 21)

Do you have an opinion what might happen if the two

fish limit were to be continued or were to be in effect

the next season, the 1975 season?

I can’t see any reason we shouldn't see the same

decline we did, say, the 15th of June this year. Why

should it be any different?

If it were to reach the point where you can no longer

financially continue in business, what would the

marketability be of your boat and other boats

equipped to do the charter fishing?

Well, if the charter business were to fall to that level,

the market for that type of boat would be nil. The

only way I could sell the boat for some other type of

venture would be through extensive alterations to

make it suitable for some other type, say a cruiser or a

BAP” lane ER esi OAS

ate iii a iii. ddan eT.

commercial vessel which would be quite expensive,

almost prohibitive. These vessels are built especially

for this type of service, and to make extensive

alterations would be quite expensive.

(p. 2-112, lines 6-24)

Charles Romaine, Motel Operator (second day):

- BPO Pr OY

POPOPO>Y

Charles Romaine, R-O-M-A-I-N-E.

Your address?

Post Office Box 558, Long Beach, Washington.

Mr. Romaine, what is your business?

Motel business.

Describe your motel and its location?

I have 120 unit motel at Long Beach, Washington,

three miles from Ilwaco. It is a recreational type

motel.

(p. 2-136, lines 23-30)

To what extent is your motel operation dependent

upon the charter business?

I would say 50 per cent.

All right, if the charter business were not in operation

in Ilwaco, what effect would that have on your ability

to function as an operator?

We would be down, of course, 50 per cent of our net.

What would that do to your operation? Would you

continue to have your debt service taken care of?

I am afraid not.

You would be out of business, would you not?

It would seem that way.

Will you tell the Court, please, what is the nature of

your investment?

Around $1,250,000. That is assessed by the state on

our taxes.

POPrOo>

Or OF &

If you are talking about market value, we'd be talking

about a different figure, would we not?

Yes.

If you were selling it, what would you say it would be

worth?

Close to $2,000,000.

When someone makes a reservation at your motel, —

strike that. Do you know, based upon your experience

of this season, whether or not there was a decline in

your business after the two fish limit became effective

the third week in June?

Yes, there was a definite decline.

To what do you attribute the decline?

Two fish.

Why do you say that?

People decided they couldn't afford to come down for

two fish.

(p. 2-138, line 22—p. 2-139, line 24)

Gail Schenk, Operator, Columbia Bar Charters

(third day):

POPe

& ©

I am Gail Schenk, S-C-H-E-N-K, Box 339, Ilwaco,

Washington.

And what is your business?

We have the Columbia Bar Charters in Ilwaco, and we

own three charter boats.

By “we,” who do you mean?

My husband and myself.

And do your sons also work in the business?

My sons operate two of our charter boats; my

husband operates the other one.

How long has your family been in business?

We started our business as Columbia Bar Charters in

1966. Our boys decked for my husband several years

a ee et ee ele

WO Ae A a AU Lele Po ca tai ht MSc lB nec tl

;

before that when he ran a charter boat. We have been

in the business at least fifteen years.

And are you responsible for the reservations,

bookings, and record-keeping of Columbia Bar

Charters?

Yes, I am.

(p. 3-56, lines 11-27)

(By Mr. Pierson) Mrs. Schenk, can you tell us based

on Exhibit 18 of your own knowledge of the industry

and speaking with the customers, what effect the

two-fish limit had on Columbia Bar Charters in

Ilwaco?

Well, the Monday of June the 17th — we have eight

boats all over twelve passengers — Monday on June

17th we had four customers. We had one hundred six

on the Saturday before, because I sold that day as a

three-fish day. I thought it was. I was confused, and a

lot of people in Ilwaco were confused. They said

midnight, June 15th, and I assumed June 15th meant

midnight of that, and apparently it meant midnight of

between the 14th and 15th. So we had one hundred

six people that Saturday. I got notice late in the

evening from the Fisheries Department — well, first I

went to Olympia to ask when the three-fish went out

and the two-fish came in, and I said I was confused, I

thought it was the 15th, the night of the 15th, and

they said they would let me know, they weren't sure.

Mr. Hawe (phonetic spelling) explained to me, said:

“Are more people confused?” I say, “Yes, we all are

kind of up in the air.” He explained to me then that he

would let me know. So all through Friday of the 14th

we still assumed we were on three-fish, until late in

the evening I got a call from one of the wives of the

Fishery men, who told me that we were going into

two-fish the next day. It was late in the evening of

Friday, the 14th, so we sold the 15th at three-fish, and

we had one hundred six people. On Sunday, the 16th,

& ©

we dropped down to forty-five, and on Monday, the

17th, we dropped down to four. We had just a very

poor latter two weeks of June. We had a very poor

July. Our records show that our month of July was

down just under three hundred people for the month

of July, as compared to the month of July in °73. We

have the same capacity boats; the same boats running

through our office those two years.

Now, what was the reason for that decline?

Well, I attribute it to the two-fish wholly and solely.

Economically we thought we might have a problem,

but we had such a good June we raised our prices at

the opening of the season a dollar per passenger,

which wasn’t much, but to cover the expense of the

anticipated raise in fuel and bait, and we thought

maybe this might have an effect, but it didn’t. Our

first two weeks in June were very good, that is,

throughout the economy. I figured that that might

have a bearing. Then I figured the gasoline might

have an effect, but it didn’t, because we had the

customers there in June. The first two weeks of June

were very good. The only thing that changed after the

15th of June was the two-fish limit. We still had the

same economy. We still had the gasoline problem. It

just was bad. But the two-fish limit, the notoriety it

got, it hurt us. It hurt us badly. We have vacation

guides which go out all over the State, which go out

all over probably the Northwest, that had articles that

we had the two-fish. It was something you couldn't

retract. It was something that was just there that

everybody picked up those papers and read it and saw

it, the two-fish, and we lived with that. Until we got

the tourist trade, just the whole tourist trade back

again, we suffered, and we suffered all through July.

Do you have an opinion, Mrs. Schenk, what would

have been the effect if the two-fish limit had

continued throughout the °74 season?

Bil: ea each ate <hr baat ites BE Mb BE Nhs AMIE ans haan: Lith Aiedhsrtnad oa

Our office would have hurt, because we run basically

on repeat customers. We are not the biggest, nor the

most available. We have reservation customers, and

we have repeat customers that come back to us. We

lost those customers in July. We lost them the latter

part of June. They had made reservations ahead of

time elsewhere, and told me they did. They were

friends of ours. We are kind of a friendly office. Most

of our customers are our friends. They went to

Oregon. We have companies that were based in

Washington that cancelled out with us for their July

trips. They had made their reservations the year

before. I got notice earlier in the year that they

cancelled out. They were going to Oregon because of

our potential two-fish limit. We lost those people.

They are hard to get back. You know, when you lose

your customers to another community or another

office or another port, you have to work real hard to

get them back.

(p. 3-59, line 17—p. 3-62, line 9)

Jasper Elton Lasseter, Asst. Dir. of Operations,

Fisheries (fifth day):

& ©

My full name is Jasper Elton Lasseter. L-A-S-S-E-T-

E-R. I reside at Route 8, Box 448G, Olympia,

Washington.

By whom are you employed?

Washingtn State Department of Fisheries, Assistant

Director in Charge of Operation.

How long have you been employed by the State of

Washington?

Twenty-three years last April.

How long have you been employed by the Depart-

ment of Fisheries? Has your employment all been

with the Department of Fisheries?

Yes, it has.

How long have you served in the capacity as assistant

director?

I keep forgetting. I think it is 11 years.

Prior to assuming your duties as assistant director for

operations, what positions in the Department of

Fisheries — what did your employment cover?

I was senior biologist in charge of — in the

management research division in charge of all of the

harvest of food fishes. Prior to that I was project

leader on sport fishery work, and before that I worked

in a laboratory at Bowmans Bay assessing the effects

of pollutants on salmon and their food organisms and

the rates and problems of acclimatizing young salmon

from fresh water to salt water. Prior to that I went to

the College of Fisheries. I had worked some part time

jobs in fisheries and received a degree in fisheries

from the University of Washington.

(p. 5-15, line 18—p. 5-16, line 16)

(By Mr. Solomon) Would you state what guidelines, if

any, were developed in formulating regulatory

enactments responsive to the Boldt Decision?

Yes, the department was seeking or searching for

those regulations which would reduce the non-treaty

Indian share so the Indian share might be greater to

reach toward the 50-50 allocation and trying to find

whether those fish would be made avail-ble to Indian

fisheries and searching for those possibilities which

would do this with the least impact on the fishermen

and the total state as possible.

What were the regulatory proposals announced by the

department as a result of its various staff meetings?

What proposals were to be considered?

The director chose two proposals, a reduction in the

sport bag limit from three fish per day to two fish per

day, and he chose the proposal that all trolling would

be prohibited within the three mile limit along the

coast of the State of Washington.

(p. 5-22, lines 6-24)

CO ee

ate RI Ret Rell I i ie Le

seed. &

ath artes oe eb, Oh oe ewe

POPS

OPro>

Was consideration given to limiting or regulating the

troll fishery beyond the three miles?

(p. 5-56, lines 8-9)

I consider that area and, yes, the area beyond the

three mile line was considered.

Was that alternative rejected?

Yes, it was.

Would you state why?

Because while we believe we can control individual

Washington fishermen beyond the three mile limit,

this does not give us control of the fishery.

When you state it doesn’t give you control of the

fishery, what do you mean?

That fishermen could continue to fish beyond the

three mile limit and land them elsewhere.

(p. 5-56, line 21—p. 5-57, line 2)

Beyond the three mile limit are there others who fish

the waters beyond three miles off the Washington

coast?

You mean other Washington citizens?

Other Washington citizens.

Yes, there are.

Will you state who they are?

Mr. Bean: By name?

THE Court: I am sure, Mr. Bean, he means

groups of people.

Mr. SoLomon: Groups. I am sorry.

There are fishermen from all the coastal states,

Alaska, Oregon, and California. There are Canadian

fishermen. These are the salmon fishermen off our

‘coast from dther jurisdictions.

Is there any altérnatives or proposals or efforts by the

Department of Fisheries to deal with the problem of

the off shore trolling industry as it effects all of the

groups that fish out there that you have just

described?

Yes, there are.

Would you relate what those are?

We have endeavored as a state to work through the

Marine Fisheries Commission to affect changes in the

trolling pattern by the other states. We work through

the United States with the director and the staff

advising the United States government in negotia-

tions with Canada wherein we urged that the

Canadian troll fishery be diminished. We are urging

the passage of a federal bill which would — I don't

remember the legal word, but would allow the federal

government to set regulations between the three and

twelve mile limit. They have jurisdiction now, but no

regulatory authority from Congress. We are strongly

urging that this take place.

In your opinion, Mr. Lasseter, would the imposition of

regulations on Washington citizens beyond three

miles restricting them from fishing beyond three

miles, would that in your opinion have had the effect

of returning more fish to the treaty Indians?

(p. 5-58, line 13—p. 5-59, line 21)

I believe there would be no appreciable return of fish

to the Indian fishermen.

(By Mr. Solomon) Would you state the basis for your

opinion?

That fishermen from other states or Washington

fishermen who had obtained licenses or landing

permits in the other states would continue to fish and

the fish would simply be landed elsewhere and that

they would still be caught and therefore, the Indians

would not have an opportunity to catch them.

(p. 5-60, line 29—p. 5-61, line 17)

‘sl he.

Pesatoe 1 Rita ei 9 Uh tal Bid ag PIMC .

Samuel G. Wright, Fish Resource Manager, Fish-

eries (sixth day):

(By Mr. Sotomon) Did any of the proposals that were

submitted compromise any of the basic conservation

principles?

Mr. Pierson: Objection, Your Honor, to the

question. If we understand the question, the question

is that it doesn't relate to anything specifically,

doesn’t relate to this case.

THE Court: Is your question, were any of the

statements of the Boldt decision in his opinion

contrary to good salmon management? Is that what

you are really asking?

Mr. Sotomon: No. I think. Your Honor, the

witness testified that there were certain aspects,

pronouncements in the decision, the Boldt decision,

that might be an incentive to compromise conserva-

tion, basic conservation principles, and I suppose I —

maybe as a foundation | ought to ask what those were.

THe Court: All right.

xa By Mr. SoLomon) Would you state what you mean,

what you have in mind when you state that there are

parts of the decision or ruling that might compromise

or be an incentive to compromising management

conservation principles.

Well, as far as — I can only express this in terms of

examples. There was, in other words, on the sharing

thing, of course, when you start talking about

numbers of fish you have got some — this is a definite

incentive to increase size limits and cut down the

numbers of fish, which in some cases conflicts with

some basic conservation principles or yields that you

can derive from resource. There were incentives to do

things like reduce river sport catches where most of

the catches are small jack salmon that pass through

because of the way the thing was expressed in

numbers. It was just, you know. some various

incentives, of course, that did exist at the time to

> O >

make changes contrary to what you normally work

with.

(p. 6-53, line 9—p. 6-54, line 15)

(By Mr. Sotomon) In formulating the proposals for

1974, a portion of which culminated in the sport bag

limit reduction and the three-mile closure in

territorial waters, did you consider the Oregon coastal

and California salmon fisheries and the size of their

fishing fleets?

That’s correct.

And why? What did you consider in that respect?

Well, we considered just basically what exists, that

they do have — their salmon fisheries, of course, are

just — with the exception of small river fisheries are

just ocean fisheries, there are no fleet fisheries in

existence south of the Columbia River, and they have

also liberalized their regulations down there in having

some impact on our stocks that we didn’t have before,

but the fisheries as exist are large and well developed

fisheries, particularly the troll fisheries and they have

the capability and do fish off the Washington Coast in

significant numbers.

(p. 6-55, lines 12-30)

Samuel G. Wright (seventh day):

All right. Let’s break it down. Let me ask you this

question: With respect to the Chinook run on Puget

Sound stocks, isn’t it a fact that Canadian fishermen

take more than 50 percent of that stock?

I would say this is probably 50 percent or possibly

more, yes, on Chinook.

With respect to the Coho run on Puget Sound stocks

what is the percentage that the Canadian fishermen

take both troll and net fishery?

(p. 7-102, lines 24-30)

—_ 77

All fisheries combined, it is about 30 plus 15, well,

let’s see, about 45 percent, I would say, on the average

for Puget Sound.

So if I asked you the question as to what percentage

of harvestable Chinook and Coho are taken by the

Canadian fishermen, would you agree that it is in the

range of 50 percent?

For Puget Sound fish, yes.

(p. 7-130, lines 1-10)

Samuel G. Wright (eighth day):

POP

Any idea how many fish were landed in Oregon?

In Oregon landings?

Yes.

I have seen some estimates. | really don’t — I see

those things routinely. It just doesn’t spring to

memory.

You say you have seen estimates. Would it be in the

neighborhood of 500,000 fish or more?

Both Chinook and Coho?

Yes.

Yes, it is definitely more than that. It is above that

number.

And it would be fair to say, would it not, that some of

the ocean trollers in Oregon compete and fish in the

same waters as the charter people from Ilwaco?

Yes, that’s correct.

(p. 8-8, line 30—p. 8-9, line 15)

All right. That same block of fish we are talking about

managing, the Ilwaco and Westport example, the

fishing effort by the charter fleet, if that fishing effort

were reduced, would to a certain extent be reallocat-

ing those fish to the troll fishery beyond three miles,

which, as you have testified, is totally unregulated. Is

that correct?

Yes. There’s going to be transfers in that, yes. That is

something that has to be figured in when you look at

the —

All right. And in addition to that, those fish moving

northward, as you have indicated, as they would have

to do to reach Puget Sound, would also be capable of

being acquired and caught by the Canadian net

fishery, is that correct, and the troll fishery which is

unregulated by your Department?

This has happened to some extent, too.

And it is totally unregulated by the Boldt decision. Is

that correct?

I believe so.

(p. 8-12, line 27—p. 8-13, line 16)

(By Mr. Bean) In 1970 is it fair to say that about 87

percent of the Chinook and Coho which were caught

as shown on your Appendix No. 1, some study you

did, on Exhibit 22, were caught beyond the three-mile

area of the commercial troll salmon fishery?

It is approximately that.

Approximately 87 percent, leaving about 13 percent

of the troll fleet catching fish within the three-mile

area?

Well, for those areas that are mentioned here, yes.

(p. 8-40, lines 1-10)

And is it fair to say with regard to the Coho salmon in

an even greater proportion over 90 percent of the

Coho are caught beyond three miles?

Yes, I would say approximately 90 percent.

And the commercial trollers are not regulated out of

the area where 90 percent of the fish, of the Coho are

caught, are they?

No.

eH eT 5 GP oe i B= toe - = -

* _—— OO =p eee :

—

Not directly or indirectly?

Well, they are regulated in the sense that there are

regulations on landings, I mean —

Are there regulations affecting how many fish they

can land that they catch outside?

No, there isn’t.

> ©

> 2

(p. 8-40, line 19—p. 8-41, line 12)

Affidavit of Sam Wright, June 12, 1974:

Samuel G. Wright, being first duly sworn on oath,

deposes and says:

That he is now, and at all times since November 1,

1972 has been, Supervisor of the Coastal Washington

Salmon Management and Research Program for the

Washington State Department of Fisheries; and gave the

following statement at a public regulation hearing on April

19, 1974:

“In order to comply with the legal order requiring a

greater availability of salmon to off-reservation treaty

Indian fisheries, there is really only one general option

available to the professional fishery manager. That,

obviously, is to effectively reduce catch levels in major

non-Indian sport and/or commercial salmon fisheries

under State jurisdiction. The only other possibility would

be to somehow shift fish from the necessary spawning

ground escapement to Indian catches. This, of course, is

completely unacceptable.

When considering the commercial troll fishery and

the ocean sport fishery, we are dealing with Washington’s

two primary harvesters of chinook and coho salmon. The

troll fishery accounts for about one-half of all State

commercial landings (including Indian sales) for these two

species. To be exact, in the past three years, trollers were

responsible for 52°: of all coho and 45°. of all chinook

landed commercially in the State. The impact of the ocean

and outer Juan de Fuca Strait sport fishery is even more

dramatic, for it accounts for 80° of the State’s entire

marine recreational catch.

For purposes of clarity, it should be noted that punch

card Area No. 5 (Sekiu-Pillar Point) has been included as

part of the “ocean sport fishery”. This is because the

biology of the fish taken in terms of size, age, maturity,

migration patterns, etc. — is much closer to the ocean

catch situation, not that of inner Puget Sound.

In reviewing potential restrictions for these two major

fisheries, we were directed by two basic guidelines:

1. The need to effectively reduce catches and thus

increase runs to Indian salmon fisheries in

terminal areas; and

2. If possible, to choose those restrictive measures

which would be least disruptive to each existing

non-Indian fishery and its support industries.

For the commercial troll fishery, we carefully

examined a group of potential restrictive measures

involving areas, seasons and size limits. Since the State

only has jurisdiction out to 3 miles offshore, we

determined that more restrictive seasons and/or size limits

would not really be effective, nor fair to Washington

trollers, unless adopted by adjacent Pacific Coast states

and Canada. We had some definite past experiences for

guidance. For example, in the late 1940’s, more restrictive

regulations dealing with the coho season and chinook size

limit were imposed for a portion of Washington’s coast.

Trollers continued to fish outside 3 miles in the supposed

“closed area” and landed their catches as far away as S.E.

Alaska ports. About 75°. of the State’s current troll

landings are made by vessels with these same trip fishing

capabilities.

Faced with this present jurisdictional situation, we

felt that the only effective means to reduce actual troll

catches would be a complete closure of all State waters.

Our statistics show that very few fish were being reported

as taken “inside 3 miles” due to the deterrent of a higher

catch tax rate as opposed to offshore catches.

We fully realize that the specific numbers cited

cannot be readily totaled up to arrive at expected ocean

catch reductions or, conversely, increases in runs to

—_

terminal fishing areas. There is a substantial amount of

interaction among and between the major ocean sport and

commercial troll fisheries. These will tend to reduce

potential savings as will the presence of immature fish

that, if not caught, would succumb to natural causes

before ever reaching maturity. On the other hand, there

are many factors which may further reduce ocean salmon

catches but cannot be easily quantified at this time. For

example, how many charter boat anglers can be expected

to shun fishing under a reduced bag limit or how many

trollers can be expected to shift their efforts to Alaska or

California?

(p. 1, line 12 through p. 2, line 32; p. 3, lines 18 through 27)

Puget Sound Gillnetters v. Moos {88 Wn.2d

677 (1977)]

Stipulated Record

1. Petitioners. Petitioner, Puget Sound Gillnetters

Association (PSGA) is a nonprofit organization, licensed

and qualified to do business in the State of Washington.

Petitioner PSGA includes in its membership approxi-

mately 600 gillnetters, the majority of the full time

commercial gillnetters harvesting Coho and Chum salmon

in the Puget Sound area. Petitioner Philip Sutherland, is a

member and President of Petitioner PSGA. He is a

resident of Washington State and a commercial gillnet

fisherman who derives his income from gillnetting for

Chinook, Coho, Sockeye, Chum and Pink salmon in the

Puget Sound area. Petitioner Sutherland intends and is

licensed by the Respondent to commercially fish with

gillnet gear for Coho and Chum salmon in 1976.

2. Intervening Petitioner. Purse Seine Vessel

Owners Association (PSVOA), is a nonprofit corporation

licensed and qualified to do business in the State of

Washington, and includes in its membership approxi-

mately 200 purse seiners, the majority of the full time

commercial purse seiners harvesting Coho and Chum

salmon in the Puget Sound area and directly regulated in

their fishing business by the Respondent. Petitioner,

Frank Marinkovich (Marinkovich), is a member and

Secretary-Treasurer of PSVOA, a resident of the State of

Washington, and is a commercial purse seine fisherman

who derives his income from purse seining for all species

of salmon in the Puget Sound area. Marinkovich is duly

licensed by Respondent and intends to fish commercially

with purse seine gear for Coho and Chum salmon in the

Puget Sound area in 1976, as he has done for many years

ast.

‘ Intervening Petitioners, PSVOA and Marinkovich,

have similar interests to Petitioners, PSGA and

Sutherland herein, and they will be deprived of fishing

time by Respondent’s existing and proposed regulations,

and said intervening Petitioners’ claims and contentions

herein and those set forth in the main action herein have

questions of law and fact in common, and they should be

permitted to intervene as Petitioners herein. .

3. Respondents. Respondent, Donald W. Moos, is

the Director of the Defendant, State of Washington

Department of Fisheries, and said Department is an

agency of the State of Washington. The Director and

Department function pursuant to the statutory provisions

set forth in RCW Title 75.

4. Subject to seasons and regulations established by

the Director of Fisheries and subject to weekend closures

established by statute, it is lawful to fish for commercial

purposes with any lawful gear for Puget Sound origin

salmon in Puget Sound fishing areas from the second

Monday in September to and including the 30th day of

November (RCW 75.12.010). Purse seine and gill net gear

are lawful gear.

5. Washington State Department of Fisheries presea-

son prediction of Puget Sound origin coho was for a return

to Puget Sound of 894,000 fish. Of the number returning

to Puget Sound, 703,000 were expected to be available for

harvesting over and above the needs for spawning

purposes. Of the 703,000 fish available for harvest, 295,000

were predicted to be natural run coho, those artificially

propagated from projects specifically for mitigation for

known destruction of runs, i.e., dams, and coho from

federal projects and cooperative projects involving treaty

tribes. 408,000 were predicted to be hatchery produced

fish from hatcheries funded unilaterally by the State of

Washington.

6. Respondent is a party to the federal court action of

United States v. Washington, 384 F.Supp. 312 (1974). The

other parties to that action are the United States, State of

Washington, and various Northwest Treaty Indians.

Petitioners and Intervening Petitioners are not parties.

Intervening Petitioners have been denied intervention,

but appear as amicus.

7. Respondent has had requirements imposed on it

by the judgment in United States v. Washington, supra,

and subsequent orders of that court in the exercise of its

continuing jurisdiction. These requirements are contained

in the judgment in United States v. Washington, supra,

pp. 342-343, 403. Subsequent significant orders imposing

additional requirements include a temporary restraining

order issued July 14, 1976, a copy of which is attached

hereto and marked Exhibit A, an injunction and

memorandum decision granting preliminary injunction

which are issued by the court on 16 August, copies of

which are attached and marked respectively Exhibits B

and C. Additionally, on September 7, 1976, Judge Boldt

ordered the Department to close all coho fishing for the

week of September 12, 1976, to nontreaty commercial

fishermen. A copy of that order is attached, marked

Exhibit D. An Order on Certain Questions Re Fisheries

Management was also entered by Judge Boldt. A copy is

attached and marked Exhibit E. The following are

excerpts from some of those orders and findings entered

by the court which set out significant requirements and

restrictions on Respondents.

A. Plaintiff-Intervenor tribes in United States v.

Washington “shall have the opportunity to take up to 50%

of the harvestable number of fish that may be taken by all

fishermen at usual and accustomed grounds and stations.”

U.S. v. Washington, supra at p. 343.

B. In counting the fish for Plaintiff-Intervenor tribes,

“fish taken on reservations shall not be included in any

allocation of fish between treaty and nontreaty fisher-

men. * * *” and “fish taken to serve ceremonial and

subsistence needs (of those tribes) shall not be counted in

the share of fish that treaty right fishermen have the

opportunity to take.” U.S. v. Washington, supra at Pp. 343.

C. When reservation catch projections are furnished

by the tribes, they shall govern unless shown to be

significantly inaccurate on challenge by Respondents, and

Respondents are required by subsequent order of the

court in U.S. v. Washington to subtract reservation,

ceremonial, and subsistence shares before computing

treaty and nontreaty shares. (“Order on Certain Questions

Re Fisheries Management” a copy of which is attached

hereto and marked Exhibit E).

D. Respondents have been required:

“to revise and to reorganize their regulatory action

and enforcement so as to conform the same to. all

requirements of Final Decision No. 1

and ordered to: , tain ge

5) t regulations or enforce an

Bier affecting the volume of anadromous fish

available for harvest by a treaty tribe at usual and

accustomed places unless such regulations are

designed so as to carry out the purposes of the nate

provisions securing to the tribe the right to take tish.

U.S. v. Washington, supra at p. 416

Respondents have been specifically required to: |

“make significant reductions in the non-Indian

fishery, as are necessary to achieve the ultimate

objectives of the Court’s decision without requiring

mathematical precision. * * *” U.S. v. Washing-

ton, supra at p. 420

E. Respondents are enjoined by subsequent order in

U.S. v. Washington from excluding hatchery or artificially

propagated fish in computing the share for treaty Indians.

er ee

Se 7

(“Order Granting Preliminary Injunction” a copy of which

is attached hereto and marked Exhibit B.)

8. Attached marked Exhibit G and incorporated by

reference herein are proposed regulations for the non-

treaty commercial net Coho fishery in Puget Sound, which

regulations were developed by Respondent in compliance

with the requirements in United States v. Washington,

supra. Those regulations, based upon anticipated returns,

were developed to provide nontreaty fishermen fishing in

Puget Sound commercial fisheries with 146,000 fish and

treaty fishermen with 557,000 fish to be harvested in

Puget Sound commercial net fisheries.

11. Preseason predictions of numbers of Puget Sound

origin Coho which will actually return to Puget Sound

areas are modified by Respondents to reflect additional

information. In-season catch monitoring provides such

information. Significant statistics utilized are measure-

ments of the catch in Canadian fisheries in the outer

Straits of Juan de Fuca and statistics from Puget Sound

fisheries as they develop. Comparisons include total catch

(by gear type), catch per unit of effort and comparisons

with historical records.

The most optimistic of the indicators computed as of

September 23, 1976 indicates the numbers of Coho

returning to Puget Sound, after all interceptions, and

prior mortalities, to be approximately 65% of the

preseason prediction. Other indicators suggest a smaller

total Coho run returning to Puget Sound.

As of September 23, Respondent has assumed for

present management purposes that the numbers of Coho

salmon which will actually return to Puget Sound after all

prior interceptions and mortalities, is approximately 50‘

of preseason predictions. Respondent has cancelled

previously established Puget Sound nontreaty commercial

net seasons for Coho of Puget Sound origin.

12. Puget Sound origin Coho have also been

harvested by Washington commercial trollers fishing in

the Pacific Ocean and by Washington sport fishermen.

Approximately 300,000 additional Coho salmon would

have returned to Puget Sound in 1976 had those fisheries

not occurred.

13. The setting and revocation of these seasons have

been intended to accomplish compliance with the above

requirements of the federal court as to numbers of fish

which must be provided treaty Indians. Even based upon

the recently revised run size predictions, there are

harvestable surpluses of Puget Sound Coho of both

hatchery and natural origin. The regulations presently

existing, i.e., a total nontreaty commercial closure, will

allow the harvest of all these fish by treaty Indians.

On September 22, 1976, Order No. 76-95 was

superseded by Order No. 76-97 market Exhibit L and

attached hereto, whereby all nontreaty commercial Coho

fishing was closed. There has been no commercial gillnet

or purse seine fishing authorized by the Respondent on

1976 Coho of Puget Sound origin. ;

15. Treaty fishermen’s main method of harvesting

Coho salmon in Puget Sound is through the use of gillnets,

set nets and purse seines.

16. Commercial fishermen’s main method of harvest-

ing Coho salmon in Puget Sound is through the use of

gillnets and purse seines.

17. The average Coho salmon when narvested

commercially in Puget Sound in 1976 weighs approxi-

mately six pounds and the present price being paid for the

Coho to the cnmercial fishermen is approximately 95

cents per pound. Both figures vary through the season.

18. Puget Sound origin Coho are available for harvest

within Puget Sound marine net fisheries primarily from

September through October. Before September, the Coho

are migrating in marine waters and after October they

have entered the fresh water streams where they are

harvested only by sport fishermen and treaty Indian net

fisheries.

19. The Department of Fisheries has issued approxi-

mately 1,500 licenses which authorize gillnet fishing in the

1976 Puget Sound fisheries.

20. There are approximately 600 to 700 treaty

fishermen expected to participate in the harvest of 1976

Puget Sound Coho stocks under treaty rights.

21. Artificial propagation of Coho salmon in Puget

Sound through state funded hatchery programs com-

menced in 1895.

22. The language of the treaties which has been the

basis for the decisions in U.S. v. Washington, supra,

Washington Game Department v. Puyallup Tribe, 414

U.S. 44, 38 L.Ed.2d 254 (1973), Puyallup Tribe v.

Department of Game, 391 U.S. 392, 20 L.Ed.2d 689

(1968), and Department of Game v. Puyallup Tribe, 86

Wn.2d 664 (1976), are identical, and a copy of the treaty

representative of that language is attached, marked

Exhibit F and incorporated by reference herein.

First Supplemental Stipulated Facts:

23. Federal District Court Judge George Boldt under

his continuing jurisdiction in U.S. v. Washington, 384 F.

Supp. 312 (1974), has ordered the Director of Fisheries to

enact regulations, which he has enacted, for the 1976

commercial fishing season which provide and make

available a greater number of harvestable salmon and

allow more fishing time to treaty Indian fishermen than to

non-Indian fishermen in Puget Sound commercial fisher-

ies. If it were not for said orders of Judge Boldt, the

Director would provide and make available a greater

number of such salmon and more fishing time to

non-Indian commercial fishermen than is_ presently

provided under existing regulations which are being

challenged herein. At the time of the hearing (October 15,

1976) all Puget Sound commercial fishing areas (except

Areas 7 and 7A in which the coho stocks are primarily of

Canadian origin) are closed to non-Indian commercial

fishermen, but treaty Indian commercial fishermen are

allowed to fish in several of these areas otherwise closed to

non-Indian fishermen, as more particularly described on

the chart attached hereto as Exhibit M.

25. In proposing 1976 Puget Sound commercial

salmon fishing regulations, Fisheries proposed regulations

”

which would have allowed non-Treaty fishermen to

harvest all artificially propagated salmon propagated by

the state. As a result of Judge Boldt’s injunction referred

to in Paragraph 7 above enjoining the state from excluding

hatchery or artificially propagated fish in computing the

share for treaty Indians, Fisheries present regulatory

pattern extends Indian treaty rights to all hatchery fish.

27. Fisheries regulations are often promulgated on an

emergency basis, commonly leaving little time for court

review in advance of their effective date. This action

involves matters of continuing and substantial public

interest. The questions presented for resolution here shall

recur in the future.

Second Supplemental Stipulated Facts:

The parties hereto have heretofore filed Stipulated

Facts and First Supplemental Stipulated Facts in this

action. They hereby stipulate to the following additional

facts to update the record in this action to include the

events of the 1977 Puget Sound and Grays Harbor

commercial salmon fisheries. Paragraph numbers shall run

in sequence from the First Supplemental Stipulated Facts.

28. On or about July 22, 1977 Respondents, pursuant

to RCW Ch. 75, adopted regulations governing commer-

cial gillnet and purse seine salmon fishing for Puget Sound

Chinook, Coho, Pink and Chum Salmon. On July 25, 1977

the defendants issued a summary of the 1977 Puget Sound

Chinook, Coho, Pink and Chum Commercial Fisheries

Regulations. Said regulations applied without discrimina-

tion to all Washington State citizens engaged in

commercial salmon fishing and did not allocate fish

between treaty Indians and other commercial fishermen.

A copy of said summary is attached hereto as Exhibit A

and by this reference incorporated herein.

29. On August 10, Judge Boldt, under his continuing

jurisdiction in U.S. v. Washington, Cause No. 9213, issued

a Memorandum Order and Preliminary Injunction, a copy

of which is attached hereto as Exhibit B and by this

reference incorporated herein, in which he assumed overall

supervision of Puget Sound commercial fishing and

exclusive control and authority for the management of

Puget Sound treaty Indian fishing. He ordered respon-

dents to present to the court regulations for non-treaty

Chinook, Coho and Chum Salmon fishery consistent with

his determined allocation of such fish between treaty

Indians and non-treaty commercial fishermen. In addition

Judge Boldt ordered the respondents to “adopt, edminis-

ter and enforce such regulations which have been found

necessary to manage the non-treaty allocation and provide

for proper spawning escapement.”

30. In response thereto, Fisheries adopted emergency

regulations, copies of which is attached hereto as Exhibit

C and by this reference incorporated herein, which closed

certain waters in Puget Sound to non-treaty commercial

fishing, i.e., canceled open fishing periods in Elliott Bay

northern Carr Inlet and part of Budd Inlet.

Their purpose was to allow treaty Indians to harvest

the number of salmon which Judge Boldt decreed to be

theirs. See Fisheries’ News Release No. 77/189 of August

12, 1977, a copy of which is attached hereto as Exhibit D

and by this reference incorporated herein.

31. On August 22, 1977, Puget Sound Gillnetters

Association (PSGA), and Purse Seine Vessel Owners

Association (PSVOA) filed an action for declaratory

judgment in Thurston County Superior Court (Puget

Sound Gillnetters Assn., et al. v. Sandison, Cause No.

58107). They requested the court to enter an order that

the regulations adopted by Fisheries in response to the

Preliminary Injunction issued by Judge Boldt are beyond

the scope of the authority of Respondent and, therefore,

void. Petitioners also sought an injunction enjoining

Respondents, the State of Washington, and its officers

from interferring with the harvest by PSGA and PSVOA

members of Puget Sound salmon not required to preserve,

protect and perpetuate the species.

32. On August 25, 1977, and in reliance upon this

Court’s ruling in Puget Sound Gillnetters Assn. v. Moos,

88 Wn.2d 677 (1977), The Honorable Frank E. Baker,

Judge, Thurston County Superior Court, entered a

Preliminary Injunction in Puget Sound Gillnetters Assn.

v. Sandison, which enjoined the Director and Fisheries

from prohibiting commercial salmon fishing in Puget

Sound during the calendar year 1977 for reasons other

than conservation purposes. A copy of the Preliminery

Injunction is attached hereto as Exhibit E and by this

reference incorporated herein.

33. On August 25, 1977 Fisheries adopted an

Emergency Order, No. 77-77, to comply with the

Preliminary Injunction issued by Judge Baker in Puget

Sound Gillnetters Assn. v. Sandison. The Emergency

Order repealed prior allocation orders adopted in

compliance with orders entered by Judge Boldt. A copy of

said order is attached hereto as Exhibit F and by this

reference incorporated herein.

34. On August 26, 1977 Judge Boldt, in U.S. v.

Washington No. 9213, entered a Temporary Restraining

Order (TRO), staying the State Court Injunction issued by

Judge Baker. In his order Judge Boldt stated that,

“A Federal Court allocation was necessary only

because the State Supreme Court had frustrated the

effectiveness of this court’s prior orders by deciding

that the Director of the Department of Fisheries

could not allocate fishing opportunity between treaty

and non-treaty fishermen.”

The TRO entered by Judge Boldt temporarily prohibited

and enjoined Judge Baker from enforcing his Temporary

Injunction of August 24, 1977 in any manner or extent and

from issuing any other order in that action which, in effect,

would prevent Fisheries from fully enforcing regulations

adopted in compliance with orders entered by Judge

Boldt. The TRO also directed the Director and Fisheries

not to obey, carry out, enforce or otherwise treat as having

any lawful force or effect Judge Baker’s order. (Copy

attached as Exhibit F-1.)

35. Pursuant to Judge Boldt’s order on August 26,

1977, Fisheries adopted an emergency order, No. 77-79.

Said order repealed Order 77-77 and set aside the original

regulations adopted by Fisheries on July 22, 1977

regulating the 1977 Puget Sound commercial fishery. A

copy of said order is attached hereto as Exhibit G and by

this reference incorporated herein.

36. On August 31, 1977 Judge Boldt entered a

Preliminary Injunction in U.S. v. Washington, No. 9213,

which enjoined and prohibited the Thurston County

Superior Court “from in any manner or to any extent

enforcing the Temporary Injunction issued by said court

on August 24, 1977, in No. 58107, and from issuing any

other order in said cause which, in effect, will prevent the

Department of Fisheries from fully complying with the

orders of this court.” (Copy attached as Exhibit G-1.)

37. On August 31, 1977, Judge Boldt entered a

“Temporary Restraining Order Re: Enforcement of 1977

Fisheries” (TRO). The TRO provided that all commercial

net fishermen licensed by the State of Washington, the

Puget Sound Gillnetters Association (PSGA), the Purse

Seine Vessel Owners Association (PSVOA), and _ all

persons in active concert and participation with them are

temporarily restrained from engaging in taking, possessing

or selling salmon of any species in violation of the Court’s

Orders of August 10, 1977, or August 31, 1977, or state

regulations adopted pursuant to the orders of the court.

The TRO further required the United States to take all

necessary steps to manage the fishery and to enforce the

orders of the court. (Copy attached as Exhibit G-2.)

PSGA, PSVOA, and their individual members are not

parties in U.S. v. Washington.

38. Pursuant to Judge Boldt’s orders on September

19, respondents adopted emergency order, No. 77-94, a

copy of which is attached hereto as Exhibit H and by this

reference incorporated herein, which closed Areas 6B, 8, 9,

10 and 11 to all non-Indian commercial salmon fishing

effective Tuesday, September 20. According to Fisheries’

News Release No. 77/229, said areas were closed to allow

treaty Indians the opportunity to take their share of the

salmon harvest and the areas would remain closed to

non-Indian commercial fishermen until further notice. A

copy of said news release is attached hereto as Exhibit I

and by this reference incorporated herein. But for Judge

Boldt’s orders,: these areas would have been open to

non-treaty commercial fishing.

39. Pursuant to Judge Boldt’s order, on September

23, 1977 respondents adopted an emergency order, No.

77-97, which provided fishing time for non-treaty

commercial fishermen during the week of September 25,

the Director indicated in a letter, a copy of which is

attached hereto as Exhibit J and by this reference

incorporated herein, that Areas 6B, 9 and 10 were not

open as previously scheduled because the non-treaty share

of Coho, as established by Judge Boldt, has been taken.

40. Several non-treaty commercial fishermen have

been cited by Federal officials and ordered to appear

before Judge Boldt to show cause why they should not be

held in criminal contempt for fishing in violation of his

orders of August 31 and emergency orders adopted by the

Director in compliance therewith.

41. Pursuant to Judge Boldt’s order allocating Coho

between treaty Indians and non-treaty commercial

fishermen, on September 27, 1977 the Director adopted

emergency order, No. 77-101, which closed the gillnet

season in Grays Harbor to non-treaty commercial

fishermen. This closure was extended by an emergency

order, No. 77-105. Copies of the Director’s letters

containing said orders are attached as Exhibits K and L,

respectively, and by this reference incorporated herein.

42. On September 27, 1977 Judge Boldt entered a

Preliminary Injunction Re the Enforcement of 1977

Fisheries, a copy of which is attached hereto as Exhibit M,

and by this reference incorporated herein. The Prelimi-

nary Injunction provides:

(1) “All Puget Sound and other marine waters

easterly of Bonilla Point-Tatoosh line and their

watersheds, all Olympic Peninsula watersheds, and all

Grays Harbor watersheds are hereby closed to all net

salmon fishing except during such times and such

ee Se

specific waters as are open by State of tribal

regulations, or regulations of the United States

conforming to the orders of this court in this case;”

(2) All net fishermen licensed by the State of

Washington, PSGA and PSVOA are enjoined from

engaging, taking, possessing or selling salmon of any

species taken from the above waters unless that

individual has first determined from the Fisheries’

hotline that the area which he intends to fish is open

at that time;

(3) The State of Washington was to serve by

certified mail, return receipt requested, on all State

licensed commercial fishermen a copy of the Court’s

Preliminary Injunction; and

(4) The State of Washington was ordered to cite

any fishermen who had received notice of the

Preliminary Injunction and thereafter fishes in

violation of the provisions of the Preliminary

Injunction.

43. On September 28 Judge Boldt ordered respon-

dents to allocate the salmon harvest in Grays Harbor so as

to provide the treaty Indians with 45 percent of the

chinook and coho and 50 percent of the chum which will

return during the 1977 fishing season.

44. On September 29 the Director adopted a

non-treaty commercial fishing schedule in Puget Sound

for the week of October 2. In a letter setting out said

schedule, a copy of which is attached hereto as Exhibit N,

and by this reference incorporated herein, the Director

said that the schedule was as directed by Paragraph E of

Memorandum and Preliminary Injunction issued by U.S.

District Court Judge George Boldt on August 31, 1977.

45. On October 4 the Thurston County Superior

Court in Grays Harbor Gilinetters Assn. v. Sandison,

Cause No. 58462, ordered respondents to promulgate

emergency regulations which do not restrict commercial

salmon fishing in Grays Harbor except for conservation

purposes. On October 5 respondents adopted Order

77-108, a copy of which is attached as Exhibit N-1 which

repealed the earlier closure of Grays Harbor, thus opening

the fishery by petitioners.

46. On October 5, Judge Boldt, in U.S. v. Washing-

ton, entered a Temporary Restraining Order (TRO) which

stayed the Thurston County Superior Court and “from

issuing any other order in said cause, or in any other cause,

which will have the effect of preventing the State of

Washington, the Washington State Department of Fish-

eries, or the officers and agents, from fully complying with

the orders of this court.” A copy of this TRO is attached

hereto as Exhibit O and by this reference incorporated

herein.

47. On October 6, the Chief Justice of this Court

entered an order in Grays Harbor Gillnetters Association

v. Sandison, Cause No. 45114 (copy attached as Exhibit

O-1).

48. On October 7, 1977, respondents Fisheries

adopted emergency regulation Order No. 77-110 to comply

with that order (copy attached as Exhibit O-2) which by

repealing earlier closures had the effect of opening fishing

seasons in certain areas of Washington.

49. On October 8, 1977, Judge Boldt entered a

Temporary Restraining Order (copy attached as Exhibit

0-4) which enjoined future openings of non-treaty

fisheries from being placed on the Hot Line without

approval of that court, its expert or its advisory board.

That order also specified what information was ordered to

be provided over the Hot Line. Specifically the message

was directed to include the fact areas were closed by order

of the federal court and fishing in violation of those

closures could subject fishermen to contempt charges.

50. On October 17, 1977, Judge Boldt entered a

Preliminary Injunction Staying Thurston County Superior

Court. (Copy attached hereto as Exhibit O-5) which

enjoined the Superior Court from “in any manner or to

any extent enforcing the temporary injunction issued by

said Court (per the Honorable Frank Baker) on October 4,

1977, in Cause No. 58462, and from issuing any other

order in said cause, or in any other cause, which will have

ee Nd ete

RI tw ae

EL eT ee

the effect of preventing (respondents) from fully comply-

ing with the orders of this court.” (Page 3)

51. On October 17, 1977, Judge Boldt entered

another Preliminary Injunction (Exhibit O-6) continuing

in effect the notification system summarized in Paragraph

42 above.

52. Gordon Sandison has been appointed Director of

Fisheries and as such has replaced Donald Moos. If this

court issues a writ of mandate to the Director, it should

issue the mandate to Gordon Sandison.

53. If it were not for the orders of Judge Boldt under

his continuing jurisdiction in U.S. v. Washington, the

Director would provide and make available a greater

number of salmon and more fishing time to non-Indian

commercial fishermen than has been previously made

available under the orders of the United States District

Court.

54. The 1977 Puget Sound commercial salmon

fishing season runs from September 12 through November

30. As of October 24 over 975,000 coho have been taken in

Puget Sound commercial (including Indian) fisheries. By

the end of the season, it is forecast over one million will

have been taken with aproximately 800,000 being of Puget

Sound origin stocks. The average coho when harvested

weighs approximately 7/2 pounds and the present price

being paid for the coho to commercial fishermen is

approximately $1.00 per pound.

55. Fisheries’ regulations are often promulgated on

an emergency basis; commonly leaving little time for court

review in advance of their effective date. This action

involves matters of continuing and substantial public

interest. The questions presented for resolution here shall

recur in the future.

ee rd

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

QUINAULT TRIBE OF INDIANS, et al.,

Intervenors-Plaintiffs,

vs.

STATE OF WASHINGTON, Defendant-A ppellant,

THor C. To.LLEerson, Director, Washington State

Department of Fisheries, et al.,

Intervenors-Defendants,

NORTHWEST STEELHEADERS CoUNCIL or Trout Un-

LIMITED AND Gary ELLIs,

Intervenor-Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

QUINAULT TRIBE oF INDIANS, et al.,

Intervenors-Plaintiffs,

vs.

STATE OF WASHINGTON, Defendant,

THor C. To.Lerson, Director, Washington State

Department of Fisheries, et al.,

Intervenors-Defendants,

WASHINGTON REEF Net OWNERS ASSOCIATION,

Intervenor-Defendant-A ppellant.

Unitep STATES OF AMERICA, Plaintiff,

QUINAULT TRIBE OF INDIANS, et al.,

Intervenors-Plaintif's,

MucK.LesHoot INDIAN Tripe, Squaxrmy ISLAND

TriBe OF INDIANS, SauK-SulaTtLe INDIAN TRIBE,

SKOKOMISH INDIAN TRIBE, STILLAGUAMISH TRIBE

or INDIANS, QUINAULT TRIBE oF INDIANS, on its

own behalf and on behalf of the Queets Banp

Or InpiaANs, Makan INDIAN TriBe, LuMMI

INDIAN Tripe, How Tripe or INpIANs, Conrep-

ERATED TRIBES AND BANDS OF THE YAKIMA

INDIAN Nation, Upper Skacit River TRIBE, AND

QUILEUTE INDIAN TriBE, Plaintiffs-Appellants,

vs.

STATE OF WASHINGTON, Defendant-Appellee,

Tor C. TOLLerson, etc. et al.,

Intervenors-Defendants.

No. 74-2414

OPINION

No. 74-2437

No. 74-2438

United States of America, et al. vs.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

QUINAULT TRIBE OF INDIANS, et al.,

Intervenors-Plaintiffs,

vs.

STATE OF WASHINGTON, Defendant-A ppellant,

THor C. Tou_erson, Director, Washington State

Department of Fisheries, et al.,

Intervenors-Defendants,

CarL Crouss, Director of the Department of Game,

the WASHINGTON STATE GAME CoMMISSION,

Intervenors-Defendants-A ppellants.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

QUINAULT TRIBE OF INDIANS, et al.,

Intervenors-Plaintiffs,

vs.

STaTE OF WASHINGTON, Defendant-Appellant,

THor C. ToLLerson, Director, Washington State

Department of Fisheries, et al.,

Intervenors-Defendants,

THor C. ToLLerson, Director, Washington State

Department of Fisheries,

Intervenor-Defendant-Appeliant.

UniTep STaTEs oF AMERICA, Plaintiff-Appellee,

QUINAULT TRIBE OF INDIANS, et al., Plaintiffs,

vs.

STATE OF WASHINGTON, Defendant,

THor C. ToLLerson, Director, Washington State

Department of Fisheries, et al., Defendants,

WASHINGTON REEF Net OwNERS ASSOCIATION,

Defendant-Appellant.

UnITep STaTEs OF AMERICA, Plaintiff,

QUINAULT TRIBE OF INDIANS, et al., Plaintiffs,

PuyALLup TRIBE Or PUYALLUP RESERVATION,

Plaintiff-A ppellant,

vs.

Strate or WASHINGTON, Defendant-Appellee,

No. 74-2439

No, 74-2440

No. 74-2567

No. 74-2602

THor C. ToLLEFson, Director, Washington St

Department of Fisheries, et al., Tedouiaane

a Ss

ne eo ee mall, an

State of Washington, et al.

UNITED STATES OF AMERICA, Plaintiff,

QUINAULT TRIBE OF INDIANS, et al., Plaintiffs,

NISQUALLY INDIAN COMMUNITY OF THE NISQUALLY

RESERVATION, Plaintiff-Appellant, No. 74-2705

vs.

STATE OF WASHINGTON, Defendant-Appellee,

THor C. TouLerson, Director, Washington State

Department of Fisheries, et al., Defendants.

[Tune 4, 1975]

On Appeal from the United States District Court

for the Western District of Washington

Before: CHOY and GOODWIN, Circuit Judges,

and BURNS,®* District Judge.

CHOY, Circuit Judge:

The United States brought this suit to enforce compliance by

the State of Washington and its Departments of Game and Fish-

eries with certain treaties between the federal government and

various Indian tribes of western Washington (treaty Indians;

treaty tribes). The Government initially represented the interests

of seven named tribes. Other tribes intervened, and fourteen tribes

are now named parties plaintiff. Organizations of commercial and

sports fishermen intervened as party defendants or participated as

amici curiae.

The district court found that Washington could not apply its

existing fishing regulations to members of the treaty tribes without

violating their federal treaty rights. The court held that the state

could enforce only those regulations necessary for conservation,

decreed an allocation of fishing opportunity between treaty Indians

and other citizens,! and retained continuing jurisdiction to pro-

vide advance judicial scrutiny of all future state regulations affect-

*The Honorable James M. Burns, United States District Judge, District

of Oregon, sitting by designation. e

1“Other citizens” includes a substantial number of citizens of Indian

ancestry who are no longer enrolled members of treaty tribes.

United States of America, et al. vs.

ing Indian treaty fishing rights. United States v. Washington, 384

F. Supp. 312 (W.D. Wash. 1974). Both sides appealed.2 We affirm

and remand.

Historical Background

In the early 1850’s, an increasing flow of American settlers

poured into the lowlands of Puget Sound and the river valleys

north of the Columbia. Washington Territory was organized in

1853. Isaac Stevens, its first governor, was commissioned to smooth

the way for settlement by inducing the Indians of the area to move

voluntarily onto reservations.

(icorge Gibbs’ official chronicle of the treaty proceedings reveals

the governor as a tactful and effective negotiator. He united the

scattered Indian communities into a number of tribes and selected

“chiefs” from cach tribe with whom to bargain. The Indians west

of the Cascade Mountains were known as “fish-eaters”; their diets,

social customs, and religious practices centered on the capture of

fish. Their fish-oriented culture required them to be nomadic, mov-

ing from one fishing spot to another as the runs varied with the

seasons. Stevens nevertheless persuaded them to settle down on

designated reservations, thus frecing the great bulk of the land

for American settlement without a bloody war of conquest. In

exchange, he promised the tribes money and the benefits of the

white man’s civilization—material goods and education. Governor

Stevens assured them, moreover, that they were restricted to the

reservations only for the purpose of residence; he explained that

they would remain free to fish off the reservations at their tradi-

tional fishing places in common with the white settlers.

In negotiating the treaties, Stevens read a predrafted document

and asked for the Indians’ comments and approval. Although the

treaties read as typical legal documents, few if any of the Indian

negotiators read or spoke English. The treaties and the Americans’

explanation of their terms were translated into Chinook jargon, a

trade medium of some 300 words common to most Northwest

Indians. The district court found that the jargon was inadequate

to express more than the general nature of the treaty provisions.

*The tribes have contended on appeal that the state may not regulate

their fishing activities at treaty locations for any reason. Their assertion

is foreclosed by the decision in Puyallup Tribe of Indians v. Dept. of

Game of Washington, 391 U.S. 392 (1968).

Silat teas nla Pesselbalians

Oe ee et od

RN LT A le AO el la SEA Tae Eo a aA Ok 5

Me TPs

telde 4 G> neo &

EEE EE ee

State of Washington, et al.

During 1854 and 1855, Stevens executed treaties with all of the

treaty tribes. Each treaty contained a provision guaranteeing off-

reservation fishing rights similar to that found in the Treaty of

Medicine Creek, 10 Stat. 1132:

The right of taking fish, at all usual and aceustomed grounds

and stations, is further secured to said Indians, in common

with all citizens of the Territory ... .

To this day, fishing remains an important aspect of Indian tribal

life, providing food, employment, and an ingredient of cultural

identity. Indians have adopted modern techniques of sport and

commercial fishing. They share the concern of other citizens with

preservation of runs of anadromous fish. Some tribes regulate the

times and manner of fishing by their members.

Decree of the District Court

The district court held that the state and its agencies ean regu-

Jate off-reservation fishing by treaty Indians at their usual and

accustomed grounds only if the state first satisfies the court that

the regulation is reasonable and necessary for conservation. The

court defined “conservation” as the perpetuation of a run or of

a species of fish. The state must also show that the conservation

objective cannot be attained by restricting only citizens other than

treaty Indians. In addition, the regulation must not diseriminate

against treaty Indians and must meet appropriate due process

standards.

Those treaty tribes meeting certain qualifying requirements

(384 F. Supp. at 340-41) may regulate fishing by their own mem-

bers free from any state regulation. Qualified tribes will be re-

quired, however, to fulfill certain conditions designed to keep the

state informed concerning their regulations and fishing activities.

The court found the Yakima Nation and the Quinault Tribe al-

ready qualified for self-regulation.

Each year, a certain escapement of fish is necessary to preserve

the run. After this eseapement has been allowed by either state

or tribal regulation, the remainder of the run is available for

harvest. The court decreed an allocation of this harvestable run

between the treaty tribes and other citizens. The state may not

regulate treaty Indians’ taking of this harvestable run at their

United States of America, et al. vs.

“usual and accustomed grounds and stations” unless necessary to

limit them to 50 percent of the harvest at those grounds. Treaty

Indians thus are to have the opportunity to take up to 50 percent

of the available harvest at their traditional grounds.

The harvest to be allocated cu.nprises not merely those fish

which actually pass the traditional fishing grounds, but also those

captured en route and those bound for those grounds but caught

in marine waters by non-treaty fishermen. The court decreed an

“equitable adjustment” to the harvestable catch to compensate for

attrition from these sources. On the other hand, those fish caught

by treaty Indians on reservations or taken for traditional tribal

ceremonies or personal consumption by tribal members and their

immediate families are to be totally disregarded in calculating the

harvestable catch.

The state and its agencies challenge virtually all of these features

of the district court’s decision.

Federal Preemption of State Regulation

By virtue-of its police power, the state has initial authority to

vegulate the taking of fish and game. Geer v. Connecticut, 161 U.S.

519 (1896). The federal government, however, may totally dis-

place state regulation in this area. For example, Congress has the

power, under the commerce clause, to authorize construction of

hydroelectric facilities, even though a dam totally destroys existing

runs of fish in the river in violation of the public policy of the

state and the desires expressed by a majority of its enfranchised

citizens. See City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320

(1958) ; Washington Department of Game v. FPC, 207 F.2d 391

(9th Cir. 1953), cert. denied, 347 U.S. 936 (1954). The federal

government may also preempt state control over fish and game

by executing a valid treaty and legislating pursuant to it. Missouri

v. Holland, 252 U.S. 416, 432 (1920). Furthermore, such a treaty

may preempt state law even without implementing legislation; a

treaty guaranteeing certain rights to the subjects of a signatory

nation is self-executing and supersedes state law. Asakura v. City

of Seattle, 265 U.S. 332, 341 (1924). Consequently, the state may

enact and enforce no statute or regulation in conflict with treaties

in force between the United States and the Indian nations.

ee oe es

eS eee

2 nna tcl Cancuhie Aiietbhiatas teeeteticd ator siibi sitet se eaten ere

State of Washington, ei al.

At issue, however, is not the federal government’s power in

executing treaties to preempt all state regulation of Indian fiishing,

but whether it has in fact done so, “Absent express federal law to

the contrary, Indians going beyond the reservation boundaries have

generally been held subject to nondiscriminatory state law other-

wise applicable to all citizens of the State.” Mescalero Apache

Tribe v. Jones, 411 U.S. 145, 148-49 (1973) ; see Carey v. South

Dakota, 250 U.S. 118, 122 (1919). A treaty guaranteeing a right

to fish distinet from that enjoyed by other citizens would be such

un “express federal law.” In deciding whether the Stevens’ treaties

created federal rights immune from abridgement by state law, we

must read their terms against a “backdrop” of Indian sovereignty,

recalling that when the treaties were signed, the United States

regarded the tribes as nations, independent and sovereign.

McClanahan v. Arizona State Tax Commussion, 411 U.S. 164, 172

(1973).

Although the United States dealt from a clearly superior posi-

tion, the treaties were negotiated at arms’ length. The treaties were

not dictated to a defeated nation. The United States wished to free

most of the land in the Puget Sound area for the impending white

migration and settlement. Governor Stevens’ task in executing the

treaties was to induce the Indians to move onto reservations. The

Indians expressed their concern that they would be unable to con-

tinue their traditional way of life, centered on the gathering of

fish, because of limited fishing opportunities on the proposed reser-

vations. The governor overeame their fears by promising them con-

tinued access to their traditional fishing areas off the reservations.

The treaties were “not a grant of rights to the Indians, but a

grant of rights from them—a reservation of those not granted.”

I'nited States v. Winans, 198 U.S. 371, 381 (1905). The extent of

that grant will be construed as understood by the Indians at that

time, taking into consideration their lack of literacy and legal

sophistication, and the limited nature of the jargon in which

negotiations were conducted. Sce id. at 380. Although ceding their

right to occupy the vast territories in which they had been accus-

tomed to roam unimpeded, the Indians reserved their traditional

right to fish at their accustomed places. They granted the white

settlers the right to fish beside them. In a sense, the treaty cloaks

the Indians with an extraterritoriality while fishing at these loca-

United States of America, et al. vs.

tions. Although present Indian status is not understood in terms

of tribal sovereignty, recalling past acceptance of that coneent

aids in perceiving the Indians’ understanding of the effect of the

treaties which they signed. They retained the right to continue to

fish as they were accustomed. Certainly, they did not understand

that in permitting other citizens aecess to their traditional fishing

areas they were submitting to future regulations calculated to

benefit those other citizens.

Nevertheless, this is precisely how the state of Washington has

regulated fishing for years. In treating treaty Indian fishermen no

differently from other citizens of the state, the state has rendered

the treaty guarantees nugatory. As the non-Indian population has

expanded, treaty Indians have constituted a decreasingly signifi-

eant proportion of the total population, catching a decreasing

proportion of a fixed or decreasing number of fish. “This is cer-

tainly an impotent outcome to negotiations and a convention,

which seemed to promise more and give the word of the Nation

for more.” Winans, 198 U.S. at 380. See Antoine v. Washington,

94 S. Ct. 944, 951 (1975).

In summary, the Indians negotiated the treaties as at least

quasi-sovereign nations. They relinquished millions of acres of

their lands, retiring to reservations carved out of these lands. But

they expressly reserved their indispensable rights to fish at their

traditional places. The United States obtained for the settlers and

for the subsequently-admitted state only the right of equal aecess

to these fishing grounds. The treaty provision at issue grants the

state’s other citizens only a limited right to fish at treaty places;

it thus is “express federal law” preempting all state regulation of

Indian fishing at the treaty fishing grounds, except as hereafter

stated. Compare Mescalcro, 411 U.S. at 148-49.

State Regulation for Conservation

The relationship between treaty Indians and other fishermen

which these treaties created is unique. The two groups of fisher-

men «lo not share a cotenaney in the fish or in the opportunity to

fish. Nevertheless, their relationship is analogous to a cotenaney,

and the experience of courts in adjusting competing claims be-

tween cotenants sheds light on the interpretation of the parties’

treaty rights.

Sl i i

State of Washington, et al.

Cotenants stand in a fiduciary relationship one to the other.

Each has the right to full enjoyment of the property, but must

use it as a reasonable property owner. A cotenant is liable for

waste if he destroys the property or abuses it so as to permanently

impair its value. See Comment, The Inter Vivos Rights of Coten-

ants Inter Se, 37 Wash. L. Rev. 70, 76 (1962). A court will enjoin

the commission of waste.

By analogy, neither the treaty Indians nor the state on behalf

of its citizens may permit the subject matter of these treaties to

be destroyed. The state may interfere with the Indians’ right to

fish when necessary to prevent the destruction of a run of a par-

ticular species in a particular stream. Thus, the Supreme Court

has held that the state may regulate the time and manner in

which the Indians take their eateh when “necessary for the con-

servation of fish.” Puyallup Tribe v. Department of Game of

Washington (Puyallup 1), 391 U.S. 392, 399, 402 n.14 (1968) ;

Tulee v. Washington, 315 U.S. 681, 684 (1942).

The state defines “conservation” to embrace three objectives and

urges that it should be allowed to curtail Indian fishing in pursuit

of conservation so defined: 1) allowing sufficient escapement to

perpetuate the fish run; 2) assuring the maximum sustained har-

vest ; and 3) providing for an orderly fishery. But the only ration-

ele for permitting state interference with Indian fishing precludes

adoption of this definition and restricts the meaning of coriserva-

tion to insuring optimum spawning escapement for perpetuation

of the run. “Rights can be controlled by the need to conserve a

species; and the time may come when the life of a steelhead is so

preearious in a particular stream that all fishing should be banned

until the species regains assurance of survival.” Department of

Game of Washington v. Puyallup Tribe (Puyallup IT), 414 U.S.

44, 49 (1973).

The state’s program for management of the state’s fisheries mav

appear sound and commendable, but the state shares its rights in

those fisheries with another party. It may not foree treaty Indians

to yield their own protected interests in order to promote the wel-

fare of the state’s other citizens. The state must pursue its goals

as best it can by regulating its own non-treaty Indian citizens. The

state may secure treaty Indians’ compliance with these regula-

tions only by gaining their acquiescence in its goals. Direct regula-

United States of America, et al. vs.

tion of treaty Indian fishing in the interests of conservation is

permissible only after the state has proved unable to preserve a

run by forbidding the catching of fish by other citizens under its

erdinary police power jurisdiction. Antoine v. Washington, 94 S.

Ct. 944, 952 (1975).3

Tribal Self-regulation

Preservation of fishery resources is of vital importance to Indians

as well as to other citizens. At the same time, regulatory inter-

ference by the state with treaty fishing is obnoxious to the treaty

tribes. These tribes have the power to regulate their own members

and to arrest violators of their regulations apprehended on their

reservations or at usual and accustomed fishing sites. Settler v.

Lameer, (9th Cir., Nov. 26, 1974). The court, in its equitable dis-

cretion, decided that qualified tribes should have the power, sub-

ject to certain conditions, to regulate their own members in the

interest of conservation free of state controls. So long as the tribes

responsibly insure that the run of each species in each stream is

preserved, the legitimate conservation interests of the state are not

infringed. We hold that the court did not abuse its discretion.4

8The Supreme Court observed that “the State must demonstrate that

its regulation is a reasonable and necessary conservation measure .. .

and that its application to the Indians is necessary in the interest

of conservation.” Antoine, 94 S.Ct. at 952 (emphasis by the Court). This

limitation on the state’s police power is nullified in practice when, as

here, a court has ordered an apportionment of the opportunity to take

the harvestable run. By apportioning between treaty Indians and other

citizens the opportunity to take all fish not needed for escapement, the

court in effect requires treaty Indians to contribute to preservation of

the run. To do so deprives the Indians of no rights. Both treaty Indians

and other citizens share responsibility, as quasi-cotenants, for the run’s

perpetuation. In Antoine, the Court denied the state’s power to compel

the treaty tribes to assist in assuring optimum escapement; it did not

question the tribes’ moral or equitable duty to do so. The tribes have

come to court seeking equity in allocation of the harvestable catch; the

court may first require them to fulfill their equitable responsibility to

allow sufficient escapement.

‘In Kennedy v. Becker, 241 U.S. 556 (1916), the Court rejected a

concept of “dual sovereignty” by which the state would regulate non-

Indians exclusively, and the tribe, Indians. The Court held that such a

duality would be unworkable; either entity would be able to destroy the

resource, free of check by the other. /d. at 563. Neither the Settler panel

nor we advocate such a duality. The tribe possesses a power of enforce-

ae ee

State of Washington, et al.

Apportionment of the Right to Fish

The necessity to limit the eatch to preserve a run defines the

extent to which the state may exercise police power to regulate

Indian fishing. By the treat , the Indians granted citizens of

the territory the right to fish in common with them, however, and

the state may enforce regulations insuring that both groups of

fishermen have fair access to the fish at the treaty areas. State

officials are in close daily contact with fishing conditions in

Washington ; they should be permitted a certain amount of flexi-

bility in devising rules to assure both groups opportunity to exer-

cise their rights. In so regulating, however, they must be aware

that they are not enforcing state policies but applying federal

rights to conerete situations. Therefore, the district court wisely

insisted that proposed state regulations be submitted to it for

approval before being enforced as to treaty Indians.

The treaty provides only that those Indians may fish “in eom-

mon with” other citizens at the traditional grounds. The legal effect

of this clause has been much disputed. The district court inter-

preted it as justifying an equal apportionment of the opportunity

to take fish:

[N]on-treaty fishermen shall have the opportunity to take up

to 50% of the harvestable number of fish that may be taken

by all fishermen at usual and accustomed grounds and stations

and treaty right fishermen shall have the opportunity to take

up to the same percentage of harvestable fish... .

384 F. Supp. at 343.

The state argues that the term “in common with” was intended

merely to insure that the treaty Indians would not be treated dis-

criminatorily, that each Indian should have access to the tradi-

tional fishing grounds on the same footing as each white settler.

The Supreme Court long ago considered this construction, how-

ment inferable from its power to regulate. Settler (slip op. at 13). This

power does not displace that of the state; ordinarily the state and the

tribe possess concurrent power to regulate Indian fishing at usual and

accustomed sites so far as necessary to preserve the run. However, the

district court has enjoined the state’s exercise of its power in order to

advanee the congressional policy of promoting tribal autonomy. If tribal

self-regulation proves impracticable, we are certain that the court will

revise this feature of its judgment.

United States of America, et al. vs.

ever, and rejected it. United States v. Winans, 198 U.S. 371, 379-

2 (1905).

In the early years following the signing of the treaties, a policy

of providing all individuals with equal access to fishing grounds

sufficiently guaranteed all parties’ rights under the treatics. White

civilization has since engulfed that of the Indian, however. Demand

for fish has outstripped supply. By continuing to treat the out-

numbered treaty Indians no differently from other citizens, the

state effectively allots them a decreasing share of the resource.

A cotenant dissatisfied with his partner’s exploitation of their

common property may seck a partition of the property in order to

protect his interest in it. Comment, supra, 37 Wash. L. Rev. at 77.

By analogy, the Indians are entitled to an equitable apportion-

ment of the opportunity to fish in order to safeguard their f:d-

cral treaty rights. See Puyallup 11, 414 U.S. at 48-49. The district

court’s apportionment does not purport to define property inter-

ests in the fish; fish in their natural state remain free of attached

property interests until reduced to possession. Geer, 161 U.S. ut

529. Rather, the court decreed an allocation of the opportunity to

obtain possession of a portion of the run.

The district court has a great amount of discretion as a court

of equity in so devising the details of an apportionment as to best

protect the interests of all parties, as well as those of the public.

Sce Lemon v. Kurtzman, 411 U.S. 192, 200-01 (1973); Sirann ve.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15-16

(1971). In legislative reapportionment cases, for example, the

Supreme Court has been content to review and decide the broad

standards (one man, one*vote) dictated by the fourteenth amend-

ment, leaving the details of the implementation of those standards

to the equitable discretion of the district courts. Sec, e.g., Keyn-

olds v. Sims, 377 U.S. 533, 585 (1964). Similarly, we propose to

state only those fundaniental legal principles which define the par-

ties’ respective rights, reviewing the remainder of the disirict

court's decree only for abuse of discretion.

We affirm the conclusion of the distriet court that the funda-

imental principle to be applied in a judicial apportionment is that

treaty Indians are entitled to an opportunity to cutch one-half of

all the fish which, absent the fishing activitics of other citizens,

would pass their traditional fishing grounds. This conclusion fol-

State of Washington, et al.

lows naturally from the circumstances in which the treaties were

signed.

The treatics must be viewed as agreements between independent

and sovereign nations. McClanahan, 411 U.S. at 172. The “tribes”

in western Washington were constructed somewhat arbitrarily by

Governor Stevens for his convenience in negotiating the treaties.

Each fribe in many cases was an aggregate of smaller, more natu-

ral units—communities or villages. Nevertheless, each tribe was

understood to be an entity for the purpose of each treaty.

Each tribe bargained as an entity for rights which were to be

enjoyed communally. See Sac and Fox Indians (Iowa) v. Sac and

Fox Indians (Oklahoma), 220 US. 481, 483-84 (1911). The reser-

vations were reserved to each tribe qua tribe. Not until 1887 was

the President authorized to allot reservation land to individual

Indians. 24 Stat. 388. Individual Indians had no individual title

to property, but participated in the communal rights of the tribe.

“The right of the individual Indian is, in effect, a right of partici-

pation similar in some respects to the rights of a stockholder in

the property of a corporation.” F. Cohen, Handbook of Federal

Indian Law 183 (1942, reprinted 1971). The right to fish at usual

and accustomed grounds was one such communal property right

pertaining to the tribe. Whitefoot v. United States, 293 F.2d 658,

663 (Ct. Cl. 1961), cert. denied, 369 U.S. 818 (1962) ; Juergens-

meyer & Wadley, The Common Lands Concept: A “Commons”

Solution to a Common Environmental Problem, 14 Natural Re-

sources J. 361, 372 (1974). To hold that the Indian negotiators

intended to secure for cach member of the tribe the right to com-

pete for fish on equal terms as an individual with each individual

settler—the state’s view of the “in common with” clause as a pro-

totype of the fourteenth amendment’s equal protection clause—

thus would be to disregard the fabric of Indian socicty at the

time the treaties were concluded, a society of communality whose

nature was reflected in the subsequent legal character of propert Vv

ownership which evolved in Federal Indian law. See F. Cohen,

supra.

In each treaty, two parties—the United States and a tribe—

bargained on the basis of formal equality. An attempt to partition

equitably rights which these parties were to hold in common must

reflect this initial equality. The district court was not required to

United States of America, et al. vs.

decree a perfect 50-50 division of fishing opportunity. (f. Mahan

v. Howell, 410 U.S. 315, 332-33 (1973); Swann v. Adams, 385 US.

440, 444 (1967); Reynolds v. Sims, 377 U.S. 533, 577 (1964). The

court itself recognized the difficulty in practice of attaining that

theoretical ideal. 384 F.Supp. at 343-44. Nevertheless, a 50-54

apportionment reflects the equality existing between the two bar-

gaining parties and best effectuates what the Indian parties would

have expected if a partition of fishing opportunities had been nec-

essary at the time of the treaties. Thus the court’s apportionment

was well within its discretion.

“Equitable Adjustment”

Today, the treaty Indians’ “ysual and accustomed” fishing

grounds in general are located upstream from sites of intensive

non-treaty Indian fishing. Because the parties to the treaties did

not anticipate shortages of harvestable fish, they did not foresee

that downstream fishing by non-Indians would someday injure the

Indians’ right to fish at their usual places. Therefore, the Indians

are entitled to catch 50 percent not simply of the fish passing the

traditional grounds, but also of those destined for those grounds

but captured dowstream or in marine waters.

The district court acknowledged the difficulty in determining

with mathematical precision the number of fish bound for the

tribes’ fishing areas. The court recognized that a large portion of

these fish are taken outside the jurisdiction of the state. Further-

more, many caught within Washington waters are taken under

regulations issued by the International Pacifie Salmon Fisheries

Commission. On the other hand, it is reasonable to suppose that

many fish appropriated beyond the state’s regulatory jurisdiction

are nonetheless taken by Washington citizens.

The court decreed:

An additional equitable adjustment, determined from time to

time as circumstances may require, to compensate treat y tribes

for the substantially disproportionate numbers of fish, many’

of which might otherwise be available to treaty right fisher-

men for harvest, caught by non-treaty fishermen in marine

areas closely adjacent to but beyond the territorial waters of

the State, or outside the jurisdiction of the State, alihoug)h

within Washington waters.

State of Washington, et al.

384 F.Supp. at 344. We agrce with the state that the court’s equi-

table diseretion does not extend so far as to permit it to compen-

sate the tribes for the unanticipated heavy fishing by foreign ships

off the coast. The treaty granted equal rights at the traditional

areas to Washington citizens, and their ability to fish is equally

impaired by foreign fishing. On the other hand, Washington citi-

zens who benefit from marine catches of fish bound for tradi-

tional areas, regardless of whether they are subject to state regu-

lation while fishing, have received a portion of the non-treaty

Indian entitlement under the treaty. The court therefore may act

within its equitable discretion by adjusting the number of fish

which the treaty Indians have an opportunity to catch in such a

way as to reflect roughly the fact that non-treaty Indian citizens

have already received a portion of their share of the run past the

treaty sites even before the state obtained jurisdiction over their

activities.

Insofar as the 1937 convention between the United States and

Canada for the protection of the Fraser River fish runs, 50 Stat.

1355, the Sockeye Salmon or Pink Salmon Fishing Act of 1947,

enacted pursuant to the convention, 16 U.S.C. §§ 776-776f, and

regulations issued thereunder displace the regulatory powers of the

state within the state’s territorial waters, fishing within those waters

should be treated no differently from fishing beyond the state’s

territorial jurisdiction. The court therefore may adjust eqeitably

the treaty Indians’ share to compensate them for fish taken by

other Washington citizens under regulations issued by the Interna-

ttonal Pacifie Salmon Fisheries Commission which otherwise would

2 available for harvest at their traditional treaty areas. The court

may so adjust the tribes’ allocation to compensate, of course, only

those tribes which share in the harvest of Fraser River salmon—

or other fish affected by the Commission’s regulations—at their tra-

ditional areas. Losses in the catch of those fish not regulated by the

Commission caused by Commission regulation of fishing gear may

also be compensated.

We reject the state’s contention that the Convention and Act

have “pre-empted” Indian treaty rights to harvest Fraser River

salmon. The Supreme Court has indicated its extreme reluctance to

find congressional abrogation of Indian treaty rights in the absence

of explicit statutory language so directing. Menominee Tribe of

United States of America, et al. vs.

Indians v. United States, 391 U.S. 404 (1968). Congress suffi-

ciently indicated its intent that all persons, including Indians,

be subject to Commission regulations, but, in the absence of an

explicit expression of intent to terminate treaty rights, losses to

other citizens sustained through compliance with those regulations

should be redressed as above stated by adding to the treaty

Indians’ permitted catch in areas under state jurisdiction.

Fish Taken on Reservations

The state contends that fish caught by treaty Indians on their

reservations should be included in their 50 percent allocation of

the catch. Analysis of the structure of a typical treaty, the Treaty

of Medicine Creek, 10 Stat. 1132, is instructive. In Article I, the

Indians ceded their lands to the United States. In Article II,

however, the treaty reserved “for the present use and occupation

of the said tribes and bands, the following tracts of land. . . .”

Finally, in Article III, “(t]he right of taking fish, at all usual

and accustomed grounds and stations, is further secured to said

Indians, in common pth all citizens of the Territory. [Emphasis

added]”

The right to take fish in common with the settlers off the reser-

vations was a right reserved by the Indians in addition to their

right to occupy and use reservation land. The settlers vlitained no

analogous rights on the reservations, Uther eitizens clearly have

no more claim to a share of the fish caught on the reservations

than they do to a right to reside on those reservations. The court

thus did not abuse its discretion in excluding fish caught on the

reservations from the apportionment.

We also affirm its decision, uncontested by the state, that fish

taken off the reservation and actually used for traditional tribal

ceremonies or for personal subsistence consumption by members

of the tribe and their families shall not be counted in the appor-

tionment.

Lummi Reef Net Fishing

The conflict between the Lummi Tribe and the non-treaty

Indian reef net fishermen involves elements not found among the

other tribes. Reef nets are. installed at various locations in the

State of Washington, et al.

sound, parallel to the shoreline from about 125 to about 1,300 yards

from shore.* Locations differ greatly in their productivity. The

technique of reef net fishing was developed by the Indians, who used

nets between reefs close to shore. Modern reef netting is far more

sophisticated, making use of artificial “reefs” and heavy equip-

ment, and is practical in deeper waters farther from shore. The

court found that the fish had been driven from shallower waters

by the whites’ use of fish traps, now illegal, and by the widespread

use of other fishing gear in the areas formerly devoted to Indian

reef nets.

Reef net fishermen by gentlemen’s agreement retain exclusive

occupancy of a given location until they sell or otherwise dispose

of their equipment. The court found that all Lummi reef net

fishermen had been squeezed out of the fishery. At present, there-

fore, a member of the Lummi Tribe can reef net in a profitable

location only by purchasing, at considerable expense, a non-treaty

Indian’s fishing gear.

The district court found that the present reef net areas are

within the usual and accustomed grounds and stations of the

Lummi Indians, and that the Lummis had a right to an oppor-

tunity to fish in those areas. The court, however, deferred for

later consideration the specific relief to be afforded the Lummis

at the expense of present occupants of reef net locations.

Reef net fishing is distinguishable from other forms of fishing

in two important respects. First, only a finite number of profitable

positions are available, each oceupied at present by a white fisher-

man who is recognized by his fellow fishermen as owning a quasi-

property interest in the site, an interest appurtenant to his

ownership of his fishing gear. Any assignment of positions to

treaty Indian fishermen must break down the present exclusive

occupancy system. Second, and more important, the court found

that:

Reef net locations were owned [at the time of the treaty]

by individuals who claimed proprietary rights by virtue of

inheritance in the male line. These locations constituted very

valuable properties to their native owners. . . . Some of the

Lummi signers of the treaty were owners of reef net loca-

‘This fact was determined from inspection of the aerial photos admitted

by the District Court as exhibits RN 7 and RN 11.

United States of America, et al. vs.

tions. Lummi Indians who were present at the Point Elliott

Treaty Council later asserted th:; the Lummi signers had

received assurances there that they would continue to hold

the rights to their fishing grounds and stations, including

their reef net locations.

384 F. Supp. at 361. The right to fish with reef nets was thus

not a tribal right, as was other fishing, but one guaranteed to

specific individuals.

The individual Indian’s proprietary relationship with a specific

reef net location presents an aberration from the general com-

munal pattern of Indian property ownership. Nevertheless, the

Treaty of Point Elliott must be interpreted with reference to the

general pattern of ownership among the tribes subscribing to it,

not to the aberrational.

The fact that, in general, Indians held property communally

has led the courts to hold that property rights, vis-a-vis the

United States, are vested in the tribe, not in the individual.

Disputes among members of the tribe are left for the tribe to

adjust internally. See Whilefoot v. United States, 293 F.2d 658,

661-63 & nn. 8 & 9 (Ct. Cl. 1961), cert. denied, 369 U.S. 818

(1962).6 In Whitefoot, for example, scarcity of good fishing

iocations at Celilo Falls on the Columbia river presented a

similar situation. There, also, individual Indians had exercised

an exclusive, hereditary right to fish certain choice locations.

Nevertheless, the Court of Claims held that damages for inunda-

tion of the falls by federal construction of a dam were recover-

able only by the tribe, not by individual tribal members.

Similarly, no matter how Lummi fishermen held reef net loca-

tions according to tribal custom, so far as the United States is

concerned, under the treaty the right to engage in reef net

fishing belongs to the Lummi tribe. Therefore, fishing in the

usual and accustomed reef net areas is subject to the same prin-

®The concept of “property” can scarcely exist outside a legal frame-

work. We are reluctant to force whatever notions of rights and duties

regarding fishing locations were held by Indians in 1854 into an Anglo-

American mold of “property rights.” We are especially reluctant to do so

when the tribe still exists with which we can deal as an intermediary,

allowing it to arbitrate among the conflicting claims of its members ac-

cording to the values and customs of their own culture.

State of Washington, et al.

ciple of equal division as is that in other usual and accustomed

areas.

The non-Indian reef net fishermen maintain that today’s fishing

areas are not part of the Lummis’ usual and accustomed areas.

They assert that present reef netting is conducted in deeper

water than that fished by the Lummis before the treaty was

signed. The court, on the other hand, found that some present-

day reef net gear is located directly upon traditional sites. It held

that the “Lummi Tribe continues to hold treaty-secured rights

to fish with reef net gear in its usual and accustomed places,

including Legoe Bay off Lummi Island . ... .” 384 F. Supp. at

404. The court also found that:

_ Since the turn of the century, the heavier volume of fish in

the vicinity of Legoe Bay traveled close to shore. This has

changed so that now fish must be taken in deeper water. This

has been caused by the installation of traps [until they

became illegal under state law] and the present abundance

of other fishing gear in the reef net area. . . . In aboriginal

times, Indian fishermen, like all fishermen, shifted to those

locales that seemed most productive at any given time, in-

cluding operation of the reef nets.

Id. at 361-62. Insofar as the district court thus concluded that

usual and accustomed grounds and stations extended a sufficient

distance from shore into Legoe Bay to enable the Indians to

harvest most productively the available fish, that finding is not

clearly erroneous. The term “grounds” as used in the treaties

denotes a broader dimension than “stations” and can readily be

understood to include the distances from shore at which present

reef netting is done.

In fashioning equitable relief for the Lummis, the district

court should give regard wherever practicable to minimizing the

resulting hardship to present white reef net fishermen.

Muckleshoot Tribe

The Muckleshoot Indian Reservation, named after the prairie

on which it is located, was established in 1857, two vears after

the treaties were signed. It was occupied by Indians who earlier

United States of America, et al. vs.

had been represented at Medicine Creek and at Point Elliott, as

well as by some Indians who apparently were parties to neither

of those treaties. The reservation was an arbitrary grouping; no

Muckleshoot Tribe had previously existed. Nevertheless, the in-

habitants of the reservation today are recognized as a tribe by

the’ United States. The district court recognized the Muckle-

shoots as a treaty tribe. We agree.

The state refused to recognize membership in the tribe —

ing federal treaty rights. The Washington Supreme Court

reas that a ks the Muckleshoot Tribe must establish

tuat he is descended from a tribe or band which was represented

at the signing of one of the treaties if he is to be accorded

treaty rights. State v. Moses, 70 Wash.2d 282, 422 P.2d 775,

appeal dismissed, 389 U.S. 428 (1967).

The Interior Department instructed Governor Stevens “to

effect [if possible] the combination of all the Bands into six or

eight Tribes, [and] to arrange half a dozen treaties or less, 80

that every one of the Tribes shall be a party to one of them.’

Exhibit USA 28. In the Treaty of Medicine Creek, 10 Stat. 1132,

the tribes ceded all the land from the divide between the

Puyallup and Duwamish rivers south to the Skookumchuck river,

from the Sound to the crest of the Cascades. In the Treaty of

Point Elliott, 12 Stat. 927, they ceded the land from the northern

boundary of the territory ceded at Medicine Creek north to the

Canadian border. Governor Stevens clearly believed that, except

for those lands designated as reservations, he had successfully

acquired the territorial rights of all the tribes in that vast area;

and the district court found that the government has consistently

treated the present-day Muckleshoot Tribe as the successor in

interest of those of its constituent tribes which had been repre-

sented in the two treaties.

The state’s principal fear seems to be that members of the

Muckleshoot Tribe will be able to use the traditional areas of all

the merged tribes, affording them special rights. The argument

is specious. The member of every tribe composed of smaller

bands possesses rights similarly more extensive than those of any

one of his direct anccstors. The treaty Indians are restricted to

the opportunity to take up to 50 percent of the harvestable catch

at traditional areas. Each Indian can fish at but one location

State of Washington, et al.

at a time, so the state’s concern that he is accorded double the

treaty rights to which he is entitled is unfounded.

Stillaguamish and Upper Skagit Tribes

The Stillaguamish and Upper Skagit Tribes were parties to the

Treaty of Point Elliott, but today are not recognized as organized

tribes by the federal government. Rights under the treaties vested

with the tribes at the time of the signing of the treaties. Non-

recognition of the tribe by the federal government and the failure

of the Secretary of the Interior to approve a tribe’s enrollment

may result in loss of statutory benefits, but can have no impact

on vested treaty rights. Whether a group of citizens of Indian

ancestry is descended from a treaty signatory and has maintained

an organized tribal structure is a factual question which a district

court is competent to determine. Cf. Upper Chehalis Tribe v.

United States, 155 F. Supp. 226 (Ct.Cl. 1957). Once a tribe is

determined to be a party to a treaty, its rights under that treaty

may be lost only by unequivocal action of Congress. Menominee

Tribe of Indians v. United States, 391 U.S. 404 (1968). Evidence

supported the court’s findings that the members of the two tribes

are descendants of treaty signatories and have maintained tribal

organizations. We therefore affirm the district court’s conclusion

that the Stillaguamish and Upper Skagit Tribes are entities pos-

sessing rights under the Treaty of Point Elliott.

Conclusion

The decision of the district court is affirmed in all respects, with

the clarification that its ‘‘equitable adjustment’’ should not take

account of fish caught by non-Washington citizens outside the

state’s jurisdiction. The case is remanded to the district court so

that it may maintain continuing jurisdiction.

Affirmed and remanded.

BURNS, District Judge. coneurring:

I coneur, but I want to add a brief comment from the view-

point of a district judge. As was suggested at oral argument. any

decision by us to affirm also involves ratification of the role of the

district judge as a ‘‘perpetual fishmaster.’’ Although I recognize

United States of America, et al, vs.

that district Judges cannot escape their constitutional responsibili-

ties, however unusual and continuing duties imposed upon them,

I deplore situations that make it necessary for us to become endur-

ing managers of the fisheries, forests, and highways, to say nothing

of school districts, police departments, and so on, The record in

this case, and the history set forth in the Puyallup and Antoino

cases, among others, make it erystal clear that it has been recalei-

trance of Washington State officials (and their voeal non-Indian

commercial and sports fishing allies) whieh produced the denial

of Indian rights requiring intervention by the district court, This

roaponsibility should neither escape notice nor be forgotten,

PERNAU WALSH PRINTING CO, SAN FRANCIECO 6-0-75-—550

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

QUINAULT TRIBE OF INDIANS, et al.,

Intervenors-Plaintiffs,

v8.

STATE OF WASHINGTON,

Defendant-Appellee,

THOR C, TOLLEFSON, Director, Washington

State Department of Fisheries, et al.,

Defendants,

Order No,

74-2414, 2437, 2438, 2439, 2440, 2567, 2602, 2705

On Appeal from the United States District Court,

for the Western District of Washington

Before; CHOY and GoopwIN, Circuit Judges, and

BurNs,* District Judge.

The panel as constituted in the above case has

voted to deny the petition for rehearing. Judges Choy

and Goodwin voted to reject the suggestion for re-

hearing en banc, and Judge Burns recommended re-

jection,

*The Honorable James M, Burns, United States District Judge,

District of Oregon, sitting by designation,

The full court has been advised of the sug-

gestion for rehearing en banc, and no judge of the

court has voted to grant rehearing en banc, F.R. App.

P. 35(b).

The petition for rehearing is denied and the

suggestion for rehearing en banc is rejected,

However, the opinion heretofore filed is amend-

ed in the following particulars:

1) Amend the last sentence of the first para-

graph on page 3 of the slip opinion to read:

“Organizations of commercial and sports fish-

ermen intervened as parties defendant or par-

ticipated as amici curiae.”

2) Amend the sentence running from page 16

to page 17 to read;

‘Reef nets are installed at various locations in

the Sound parallel to the shoreline from about

125 to about 1300 yards from shore,”

8) Amend footnote 5, page 17, to read:

“This fact was determined from inspection of

the aerial photographs admitted by the district

court as exhibits RN 7 and RN 11,”

Filed July 23, 1975.

Docketed Aug. 4, 1975,

UNITED STATES of America, Plaintiff,

Quinault Tribe of Indians on its own behalf and on behalf of

the Queets Band of Indians, et al., Intervenor-Plaintiffs,

STATE OF WASHINGTON, Defendant,

Thor C, Tollefson, Director, Washington State Department of

Fisheries, et al., Intervenor-Defendants.

Civ, No, 9213,

United States District Court,

W. D, Washington at Tacoma,

Feb, 12, 1974,

STATEMENT OF THE CASE

BOLDT, Senior District Judge.

In September, 1970 the United States, on its own behalf and

as trustee for several Western Washington Indian Tribes,’ later

joined as intervenor plaintiffs by additional tribes,’ filed the complaint

initiating this action against the State of Washington, Shortly later

the State Department of Fisheries (Fisheries) and the State Game

Commission (Game), their respective directors, and the Washington

Reef Net Owners Association (Reef Net Owners) were included

as defendants, By state statute Fisheries is charged with exercising

regulatory authority over fishing for all anadromous food fish, Reg-

ulation of anadromous steelhead trout is vested in Game, Plaintiffs

seek a declaratory judgment pursuant to 28 U.S.C, §§ 2201 and 2202

concerning off reservation treaty right fishing within the case area

by plaintiff tribes, which long has been and now is in controversy,

and for injunctive relief to provide enforcement of those fishing

rights as they previously have been or herein may be judicially

determined, The case area is that portion of the State of Washington

west of the Cascade Mountains and north of the Columbia River

| 'Hoh Tribe; Makah Tribe, Muckleshoot Tribe; Nisqually Tribe; Puyallup

Tribe; Quileute Tribe; Skokomish Tribe

“Lummi Tribe; Quinault Tribe; Sauk-Suiattle Tribe; Squaxin Island Tribe;

Stillaguamish Tribe; Upper Skagit River Tribe; Yakima Nation

~ ae

drainage area, and includes the American portion of the Puget

Sound watershed, the watersheds of the Olympic Peninsula north

of the Grays Harbor watershed, and the offshore waters adjacent

to those areas,

Plaintiffs also assert claims for relief concerning alleged de-

struction or impairment of treaty right fishing due to state authoriza-

tion of, or failure to prevent, logging and other industrial pollution

and obstruction of treaty right fishing streams, Separation of those

claims for pretrial and trial after trial of the issues determined in

this decision was stipulated and approved by the court,

Venue is properly laid in this court under 28 U.S.C, § 1391(b).

Jurisdiction is alleged as to all tribes under one or more of the

following provisions; 28 U.S.C, §§ 1345, 1331, 1343,(3) and (4)

and 1362." All of these allegations were conceded by all defendants,

Wibject to their contention that exclusive jurisdiction to hear and

determine the issues in this case is in the Indian Claims Commission

under 25 U.S.C, §§ 70-70v and Game's denial of jurisdiction as to

the Puyallup Tribe. This court has previously he! and hereby affirms

that both of these contentions are without merit and denied, It is

hereby found and held that jurisdiction and venue have been estab-

lished in all particulars as detailed in Part One of the Final Pretrial

Order,

Fisheries contends the Muckleshoot, Stillaguamish and Upper

Skagit tribes do not hold a special treaty status to harvest anadromous

fish, Game joins in this contention and makes the same contention

regarding the Sauk-Suiattle Tribe, These contentions are considered

and denied in the written Findings of Fact and Conclusions of Law.

Shortly after appearance in the action by all defendants the

first of a considerable number of pretrial conferences was held,

Among many preliminary matters considered at that time were the

court's suggestions that so far as possible all tribes, agencies or organ-

izations having or claiming direct or indirect justiciable interest in

treaty fishing rights in this judicial district be brought into the case

either as parties or as amicus curiae; and that every issue of substan-

tial direct or indirect significance to the contentions of any party

be raised and adjudicated in this case, Both suggestions were accept-

able to all parties and to a great extent they have been put into

‘See Final Pretrial Order paragraph |

effect. Thus every interested agency and organization not joined as

a party has had an opportunity to present its views on any of the

issues in the case,‘

For more than three years, at the expenditure by many people of

great time, effort and expense, plaintiffs and defendants have con-

ducted exhaustive research in anthropology, biology, fishery man-

agement and other flelds of expertise, and also have made extreme

efforts to find and present by witnesses and exhibits as much infor-

mation as possible that pertains directly or indirectly to each issue

in the case, As a consequence of this extensive pretrial preparation,

all parties joined in stipulating to a great many agreed facts which

are stated in exhibits or included in the Final Pretrial Order, The

Joint Biological Statement, Exhibit JX-2a, jointly proposed and

admitted in evidence as agreed facts applicable as indicated therein,

was prepared by and agreed to by highly qualified experts employed

by and representing both plaintiffs and defendants and is of excep-

tional importance and practical value, It is believed considerable

historic and scientific information never before presented in a case

involving treaty rights is now recorded and may prove of value in

later proceedings in this case and possibly in others,

To great advantage, all procedures recommended in the Manual

for Complex Litigation hove been followed by counsel in the par-

ticulars and to the extent found applicable and practicable by the

court, With approval of court and counse! upon its entry the Final

Pretrial Order became the final statement of all issues to be heard

and determined in this decision, and pleadings pertaining to those

issues passed out of the case, subject only to amendment by the court

to prevent manifest injustice, Such amendments have been included

in the text of the Final Pretrial Order,

Every attorney in the case has vigorously and effectively pre-

sented the particular interests and contentions of each client he

represents to the maximum extent professional duty requires, On

the other hand there has been a remarkable degree of highly respon-

‘The following agencies of organizations have submitted, of concurred

in written briefs idaho Fish & Game Department; Port of Seattle; Washington

State Sportsmen's Council, Inc.; Northwest Steelheaders, Ine; Committee to

Save Our Fish; Tacoma Sportmen's Club, Ine: Tacoma Poggie Club, Ine.

Purse Seine Vessel Owners Association

sible and most commendable cooperation on the part of all counsel

throughout trial preparation and trial which has greatly expedited

discovery and full presentation of the issues and evidence in the

case, All of the legal issues have been researched in depth and

effectively presented and argued in the pretrial briefs, and in the

final briefs submitted after the presentation of evidence was con-

cluded and before final argument, which also was exceptional in

professional quality, By direction of the court all parties either in-

dividually or jointly, as they chose, prepared and submitted proposed

findings of fact and conclusions of law referenced to the record and

also drafts of a proposed decree, Each proposed finding, conclusion

and decree has been closely examined and considered by review of

the evidence and the portions of the briefs pertaining to each item,

All fact findings and legal rulings stated herein and the detailed

Findings of Fact, Conclusions of Law and Decree signed and entered

by the court are hereby made a part of this decision,

On January 11, 1974, when Game filed the final version of

its proposed findings, conclusions and decree the issues tried were

finally submitted for decision.

This court is confident the vast majority of the residents of

this state, whether of Indian heritage or otherwise, and regardless

of personal interest in fishing, are fair, reasonable and law abiding

people, They expect that kind of solution to all adjudicated contro-

veries, including those pertaining to treaty right fishing, and they will

accept and abide by those decisions even if adverse to interests of

their occupation or recreational activities,

More than a century of frequent and often violent controversy

between Indians and non-Indians over treaty right fishing has resulted

in deep distrust and animosity on both sides, This has been inflamed

by provocative, sometimes illegal, conduct of extremists on both

sides and by irresponsible demonstrations instigated by non-resident

opportunists,

To this court the evidence clearly shows that, in the past, root

causes of treaty right dissension have been an almost total lack of

meaningful communication on problems of treaty right fishing be-

tween state, commercial and sport fishing officials and non-Indian

fishermen on one side and tribal representatives and members on

the other side, and the failure of many of them to speak to each other

and act as fellow citizens of equal standing as far as treaty right

fishing is concerned. Some commendable improvement in both re-

spects has developed in recent years but this court believes high

priorty should be given to further improvement in communication

and in the attitude of every Indian and non-Indian who as a fisher-

man or in any capacity has responsibility for treaty right fishing

practices or regulation. Hopefully that will be expedited by some of

the measures required by this decision.

The ultimate objective of this decision is to determine every

issue of fact and law presented and, at long last, thereby finally settle,

either in this decision or on appeal thereof, as many as possible of

the divisive problems of treaty right fishing which for so long have

plagued all of the citizens of this area, and still do.

I. ESTABLISHED BASIC FACTS AND LAW

(Hereinafter italicize emphasis added unless otherwise indicated)

The first decision of the United States Supreme Court on Indian

treaty rights, Cherokee Nation v. Georgia, 5 Pet. 1, 30 U.S. 1, 8 L.Ed.

25, was written by Chief Justice Marshall in 1831. Since then deci-

sions on the same subject matter have been rendered in that court,

other federal courts and state courts in a considerable number to the

present time.” All of the decisions that appear to have direct or indirect

application to the present case have been closely reviewed and

analyzed, individually and in relation to each other. Based thereon

this court finds and holds that the following statements are now well

established in fact and law.

1. Art. VI, cl. 2 of the United States Constitution provides:

The “Constitution . . . of the United States ,

and all Treaties made, or which shall be made, under the Au-

thority of the United States, shall be the supreme Law of the

Land; and the Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any State to the Con-

trary notwithstanding.”

2. To the great advantage of the people of the United States,

not only in property but also in saving lives of citizens, and to ex-

pedite providing for what at the time were immediate and imperative

national needs, Congress chose treaties rather than conquest as the

*The Table of cases appended hereto includes only all cases which have

been cited by any party as authority pertaining to any issue in this case and

other cases considered by the court. In the table, the abbreviated title of

each case referred to in the decision is italicized.

means to aquire vast Indian lands. It ordered that treaty negotiations

with the plaintiff tribes and cthers in the Northwest be conducted as

quickly as possible. Isaac I. Stevens, Governor of Washington Terri-

tory, proved to be ideally suited to that purpose for in less than one

year during 1854-1855 he negotiated eleven different treaties, each

with several different tribes, at various places distant from each

other in this rugged and then primitive area. The treaties were written

in English, a language unknown to most of the tribal representatives,

and translated for the Indians by an interpreter in the service of the

United States using Chinook Jargon, which was also unknown to some

tribal representatives. Having only about three hundred words in its

vocabulary, the Jargon was capable of conveying only rudimentary

concepts, but not the sophisticated or implied meaning of treaty

provisions about which highly learned jurists and scholars differ.®

In 1899 the United States Supreme Court in considering a

similar situation said:

“In construing any treaty between the United States and

an Indian tribe, it must always (as was pointed out by the

counsel for the appellees) be borne in mind that the negotiations

for the treaty are conducted, on the part of the United States,

an enlightened and powerful nation, by representatives skilled

in diplomacy, masters of a written language, understanding the

modes and forms of creating the various technical estates known

to their law, and assisted by an interpreter employed by them-

selves; that the treaty is drawn up by them and in their own

language; that the Indians, on the other hand, are a weak . nd

dependent people, who have no written language and are wholly

unfamiliar with ali the forms of legal expression, and whose

only knowledge of the terms in which the treaty is framed is

that imparted to them by the interpreter employed by the United

States; and that the treaty must therefore be construed, not

according to the technical meaning of its words to learned law-

yers, but in the sense in which they would naturally be under-

stood by the Indians. Worcester v. Georgia, 6 Pet. 515 [8 L.Ed.

483]; The Kansas Indians, 5 Wall. 737, 760 [18 L.Ed. 667];

Choctaw Nation v. United States, 119 U.S. 1, 27, 28 [7 S.Ct.

75, 30 L.Ed. 306, 314, 315] . ‘The language used

in treaties with the Indians should never be construed to their

prejudice. . . . ‘How the words of the treaty were under-

SExhibit (Ex) USA-20, pp 24-29; Finding of Fact (FF) #2.

a ee ee ee ee

stood by this unlettered people, rather than their critical mean-

ing, should form the rule of construction.’ "7

In 1905 the above principles were reiterated in Winans (198

U.S. . 380, 25 S.Ct. p. 664):

“And we have said we will construe a treaty with the Iidians

as ‘that unlettered people’ understood it, and ‘as justice and

reason demand, in all cases where power is exerted by the

strong over those to whom they owe care and protection,’ and

counterpoise the inequality ‘by the superior justice which looks

only to the substance of the right, without regard to technical

rules.” [citing Choctaw and Jones]”

3. The United States Supreme Court in Missouri (252 U.S. p.

434, 40 S.Ct. p. 384) stated:

“Valid treaties of course ‘are as binding within the territorial

limits of the States as they are elsewhere throughout the

dominion of the United States.’ Baldwin v. Franks, 120 USS.

678, 683, 7 S.Ct. 656, 32 L.Ed. 766.”

4. Each of the basic fact and law issues in this case must

be considered and decided in accordance with the treaty language

reserving fishing rights to the plaintiff tribes, interpreted in the spirit

and manner directed in the above quoted language of the United

States Supreme Court. Each treaty in this case contains a provision

substantially identical to that in the Medicine Creek treaty: “The

right of taking fish, at all usual and accustomed grounds and stations,

is further secured to said Indians, in common with all citizens of

the territory, and of erecting temporary houses for the purpose of

5. “The right to resort to the [usual and accustomed] 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 impediment, and which were not much less necessary to the

existence of the Indians than the atmosphere they breathed.

[T]he treaty was not a grant of rights to the Indians

but a grant of right from them—a reservation of those not

granted.””®

“And surely it was within the competency of the Nation to

‘Jones, 175 U.S. at 10, 11, 12, 20 S.Ct. at 5; other decisions by the same

court containing the same or similar language: Cherokee, Worcester, Kansas

Indians, Winans, Kennedy, Seufert, Tulee.

8Text of all treaties FF #1.

9U.S.Sup.Ct. in Winans, 198 U.S. at 381, 25 S.Ct. at 664.

secure to the Indians such a remnant of the great rights they

possessed as ‘taking fish at all usual and accustomed places.’ ”?°

6. “. . . [The [treaty] negotiations were with the tribe.

They reserved rights, however, to every individual Indian, as

though named therein. And the right was intended to be

continuing against the United States and its grantees as well as

against the State and its grantees.”'' That those rights are also re-

served to the descendants of treaty Indians, without limitation in

time, excepting as Congress may determine, has been recognized and

applied by the United States Supreme Court from the first to the

latest decision of that court involving Indian treaty fishing rights.

7. An exclusive right of fishing was reserved by the tribes

within the area and boundary waters of their reservations,’

wherein tribal members might make their homes if they chose to do

so. The tribes also reserved the right to off reservation fishing “at

all usual and accustomed grounds and stations” and agreed that “all

citizens of the territory” might fish at the same places “in common

with” tribal members. The tribes and their members cannot rescind

that agreement or limit non-Indian fishing pursuant to the agree-

ment. However, off reservation fishing by other citizens and residents

of the state is not a right but merely a privilege which may be granted,

limited or withdrawn by the state as the interests of the state or the

exercise of treaty fishing rights may require.

8. The tribes reserved the right to fish at “all usual and

accustomed grounds and stations.” The words “grounds” and “sta-

tions” have substantially different meanings by dictionary definition

and as deliberately intended by the authors of the treaty. “Stations”

indicates fixed locations such as the site of a fish wier or a fishing

10]d. at 384, 25 S.Ct. at 665.

11]d. at 381-382, 25 S.Ct. at 664.

12This proposition is not denied or challenged by any party in this case.

As previously stated in paragraph 4 of the text, the fishing clauses are sub-

stantially identical in the treaties of all plaintiff tribes. The fishing clause in

the Yakima treaty applies the word “exclusive” to on reservation fishing. Al-

though the word is used in the same context in several other treaties not

involved in this case it does not appear in the treaty of any other plaintiff

tribe. However, in every case involving a fishing clause subsiantially similar to

that quoted in the text of this decision in which “exclusive” is not present,

without exception the United States Supreme Court has assumed that on

reservation fishing is exclusive and has interpreted and applied similar

fishing clauses, as though the word “exclusive” was expressly stated therein

as in the Yakima treaty. Research has not disclosed any reported decision to

the contrary.

—-e ©

platform or some other narrowly limited area; “grounds” indicates

larger areas which may contain numerous stations and other un-

specified locations which in the urgency of treaty negotiations could

not then have been determined with specific precision and cannot

now be so determined. “Usual and accustomed,” being closely

Synonymous words, indicate the exclusion of unfamiliar locations

and those used infrequently or at long intervals and extraordinary

occasions. Therefore, the court finds and holds that every fishing

location where members of a tribe customarily fished from time to

time at and before treaty times, however distant from the then

usual habitat of the tribe, and whether or not other tribes then also

fished in the same waters, is a usual and accustomed ground or station

at which the treaty tribe reserved, and its members presently have,

the right to take fish.**

Il. SUMMARY OF FINDINGS OF FACT AND CONCLUSIONS

OF LAW

This summary of the 253 separate detailed Findings of Fact

and 48 Conclusions of Law filed herewith is intended as a recital

of only the principal categories thereof, several of which are discussed

elsewhere in this opinion.

The Findings of Fact set forth the treaties under which each

tribe, or its predecessors, negotiated with the United States, and in

which the Indians expressly reserved the right to fish at off reserva-

tion usual and accustomed fishing places. The pretreaty role of fishing

among Northwest Indians is outlined, emphasizing the universal

importance of the fishery resource, particularly salmon and steelhead,

to Indians in the case area as an element of diet and in religious

practices and trade. The Northwest Indians developed a wide variety

of fishing methods which they utilized to catch many varieties of

fish at innumerable locations throughout the areas where they lived

and traveled.

In the mid-1850's the United States treated with the unlettered

Northwest Tribes to acquire great expanses of land. Reluctant to be

confined to small reservation bases, the Indian negotiators insisted

that their people continue to fish as they had beyond the reservation

boundaries. There is no indication that the Indians intended or

Seufert and see F.F. 10 and 13.

understood the language “in common with all citizens of the Terri-

tory” to limit their right to fish in any way. For many years following

the treaties the Indians continued to fish ir their customary manner

and places, and although non-Indians also fished, there was no

need for any restrictions on fishing.

For each of the plaintiff tribes, the findings set forth information

regarding the organization and membership of the tribe, and some,

but by no means all, of their principal usual and accustomed Sehing

places. Anthropological data are also presented for several tribes,

as well as information concerning present Indian culture and econ-

omy. Several tribes are currently involved in fish propagation pro-

grams which benefit the tribes and the state.

Fact findings are also presented regarding reef net fishing which

show that current non-Indian reef net operations take place at or

near the same locations occupied historically by Lummi Indian

fishermen.

General fisheries conservation and management data are pre-

sented, incorporating the Joint Biological Statement which sets fore

many significant facts concerning anadromous fish. Procedures and

objectives are outlined for managing salmon and steelhead was om

mercial, sport and Indian user groups including regulatory schemes

promulgated by state authorities and by Indian tribes. The means

and locations used to harvest the resource and the quantity of the

harvest are also presented.

The policies and practices of both Fisheries and Game are

also presented. Due in part to the nature of the species of fish nage

lated. Fisheries evidences better success In managing the salmon than

does Game with regard to steelhead. Fisheries has also evidenced an

attitude of cooperation with the plaintiff tribes that has been lacking

from Game, at least prior to Puyallup-ll.

The Conclusions of Law, after stating the basis of juris-

diction and venue, establish the treaty status of each of the plain-

tiff tribes, and therefore, the right of their members to fish off

reservation in common with the citizens of the state. The fishing

right was reserved by the Indians and cannot be qualified by the

state. The state has police power to regulate off reservation fishing

only to the extent reasonable and necessary for conservation of the

resource. For this purpose, conservation is defined to mean per-

ee ee ee

neat ots

eget Bite 4

petuation of the “‘isheries species. Additionally, state regulation

must not discriminate against the Indians, and must meet appro-

priate due process standards.

The Yakima Nation and the Quinault Tribe are presently

qualified to self-regulate the off reservation fishing of their tribal

members. Other tribes may similarly self-regulate member fish-

ing if and when they meet the qualifications and conditions set

forth in the decision.

Several current state laws and regulations which restrict the

time, place, manner and volume of off reservation fishing by treaty

tribes, and reserve game fish for sport interests, have not been

established as reasonable and necessary for conservation and the

applicetion thereof to plaintiff tribes is unlawful. The court will retain

continuing jurisdiction of this case to grant such further relief as the

court may find appropriate.

Il. STATE REGULATION OF OFF RESERVATION TREATY

RIGHT FISHING

There is neither mention nor slightest intimation in the treaties

themselves, in any of the treaty negotiation records or in any

other credible evidence, that the Indians who represented the

tribes in the making of the treaties, at that time or any time afterward.

understood or intended that the fishing rights reserved by the tribes as

recorded in the above quoted language would, or ever could, authorize

the “citizens of the territory” or their successors, either individually o1

through their territorial or state government, to qualify, restrict or

in any way interfere with the full exercise of those rights. All of the

evidence is overwhelmingly to the contrary, particularly in the vivid

showing in the record that the treaty Indians pleaded for and in-

sisted upon retaining the exercise of those rights as essential to

their survival. They were given unqualified assurance of that by

Governor Stevens himself without any suggestion that the Indians’

exercise of those rights might some day, without authorization of

Congress, be subjected to regulation by non-Indian citizens through

their territorial or state government.''

For several decades following negotiation and ratification of the

treaties all of the tribes extensively exercised their treaty rights by

'Ex, USA-20 pp 24-29, 42-43; FF 42.

fishing as freely in time, place and manner as they had at treaty

time, totally without regulation or any restraint whatever, excepting

only by the tribes themselves in strictly enforcing tribal customs and

practices which, during that period and for innumerable prior gen-

erations, had so successfully assured perpetuation of all fish species in

copious volume, The first other than naturally caused threat to

volume or species came from non-Indian population growth and non-

Indian industrial development in the rapid westward advance of

civilization,'®

In the final pretrial order in this case issues were raised therein

by the contentions of several tribes later joined by the remaining

plaintiff tribes that: (a) the state police power dicta followed by

the United States Supreme Court are not sound in legal logic or

principle, and (b) even if so, state regulation of the exercise of

indian off reservation treaty fishing rights must be denied in “justice

and reason, looking to the substance of the rights reserved as under-

stood by the Indians who negotiated the treaties, without regard to

technical rules,” as all American courts for a century or more

have been repeatedly admonished by the United States Supreme

Court in the same or similar language.'"

in addition to raising the above stated issues in the final pretrial

order, the tribes have submitted well researched briefs and vigorous

oral argument in support thereof, That the contentions are not

without at least color of merit in judicial and scho

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.