Amicus Brief — Washington v. Washington State Commercial Passenger Fishing Vessel Assn.

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No. 77-983

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In the Supreme Court of the United States

OCTOBER TERM, 1977

STATE OF WASHINGTON, ET AL., PETITIONERS

Vv.

WASHINGTON STATE COMMERCIAL PASSENGER FISHING

VESSEL ASSOCIATION AND WASHINGTON KELPERS

ASSOCIATION

STATE OF WASHINGTON, ET AL., PETITIONERS

Vv.

PUGET SOUND GILLNETTERS ASSOCIATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF WASHINGTON

MEMORANDUM FOR THE UNITED STATES

AS AMICUS CURIAE

Wave H. McCree, Jr..

Solicitor General.

JAMES W. MoorMAn,

Assistant Attorney General,

KATHRYN A. OBERLY,

Attorney,

Department of Justice

INDEX

Page

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CITATIONS

Cases:

Columbia River Fishermen’s Protective

Union, Inc. v. Dixie Lee Ray, Thurston

County Super. Ct., No. 55339 (decided

Se tee UN Wicieiadiirea diate leiermeitanees 3

Ff 6 eee 9, 10

Puget Sound Gillnetters Ass’n. v. Moos,

88 Wash. 2d 677, 565 P. 2d IISI .......... 3, 9, 12

Puget Sound Gillnetters Ass'n. v. Sandison,

Thurston County Super. Ct., No. 58107

(GOGIREE AMEE BG, BGT T) ..cccccccccccccscccsesccoeses a

Purse Seine Vessel Owners Ass'n. v. Moos,

88 Wash. 2d 799, 567 P. 2d 205 ....................4. 3

Puyallup Tribe, Inc. v. Department of Game

of Washington, No. 76-423, decided

I He: IE serdeserdindianatpnanladaibieieidceimtsadiaiideitameinie 9

United States v. Johnson, 319 U.S. 302 ............. 10

United States v. Kagama, 118 U.S. 375 ............... l

United States v. Klamath Indians, 304 U.S.

SUE: eiceuustaibnamieihiiedeenecloatieladiagideiih teh ictal iin |

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Page

Cases—continued:

Washington State Commercial Passenger

Fishing Vessel Ass’n. v. Tollefson, 89 Wash. 2d

276, 571 P. 2d 1373, dismissed on

appeal as moot, 87 Wash. 2d 417, 553

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Statute and rule:

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Rule 19(1)(a) of the Supreme Court of the

ELL ARERR TEE TTT &

In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-983

STATE OF WASHINGTON, ET AL., PETITIONERS

Vv.

WASHINGTON STATE COMMERCIAL PASSENGER FISHING

VESSEL ASSOCIATION AND WASHINGTON KELPERS

ASSOCIATION

STATE OF WASHINGTON, ET AL., PETITIONERS

Vv.

PUGET SOUND GILLNETTERS ASSOCIATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF WASHINGTON

MEMORANDUM FOR THE UNITED STATES

AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

The interest of the United States in these cases is

premised on its specia! relationship with, and responsibili-

ty for, the Indian tribes within its borders. United States

v. Klamath Indians, 304 U.S. 119, 123; United States v.

Kagama, 118 U.S. 375, 382. In addition, the United States

has a unique and direct interest in this proceeding because

the state court decisions of which review is sought may

(1)

2

affect rights established in United States v. Washington,

384 F. Supp. 312 (W.D. Wash.), affirmed, 520 F. 2d 676

(C.A. 9), certiorari denied, 423 U.S. 1086. The United

States brought that federal-court action on its own behalf

and in its capacity as trustee for the Indians.

STATEMENT

The present petition raises issues arising out of the 1974

decision of the federal district court in United States v.

Washington, 384 F. Supp. 312 (W.D. Wash.), affirmed,

520 F. 2d 676 (C.A. 9), certiorari denied, 423 U.S. 1086.

In that case, the district court held that certain Indians of

the Pacific Northwest, pursuant to treaties with the

United States, are entitled to an opportunity to catch up

to 50 percent of any run of fish that normally would pass

through their off-reservation sites, with adjustments for

fish caught beyond state jurisdiction and subsistence and

ceremonial fishing (384 F. Supp. at 343-344). To

implement its decree, the district court directed the State

of Washington to reduce non-Indian fishing to the extent

necessary to permit treaty Indians to exercise their fishing

rights (id. at 420). After the court of appeals affirmed, the

case was remanded to the continuing jurisdiction of the

district court to ensure implementation by the State of

Washington of the Indians’ treaty rights (520 F. 2d at

693).

Implementation of the district court decree has

remained a problem. The State of Washington has been

unable to discharge its responsibilities under the deci-

sion, and non-treaty fishermen have continued to fish

throughout the area in disregard of state regulations and

the district court’s mandates. In each fishing season since

the decision, the United States and the plaintiff-intervenor

tribes have been forced to return to the district court

seeking further orders to require compliance with that

3

court’s Final Decision No. 1|.! At the same time, non-

Indian fishermen have instituted numerous suits against

the State of Washington in the state courts, seeking

declaratory and injunctive relief against implementation

of state regulations that limit non-treaty fishing to protect

treaty rights in compliance with the federal court's

mandate. The state courts have consistently granted such

relief, holding not only that the regulations are in

violation of state law, but that the federal district court’s

interpretation of the Indians’ treaty rights was erroneous

and unconstitutional.’

The present cases represent part of the state court

litigation. In Puget Sound Gillnetters Ass'n. v. Moos, 88

Wash. 2d 677, 565 P. 2d 1151 (Pet. App. D), respondents,

an individual and an association of commercial non-

Indian fishermen, filed an original action for mandamus

in the state supreme court, asking that the Washington

Department of Fisheries be restrained from promulgating

fishing regulations which, as required by the federal

decision, would allocate the harvest between treaty and

'As we discuss below, these facts are not contained in the record of

this proceeding. However, the record in United States v. Washington,

W.D. Wash., Civil No. 9213, contains evidence of illegal non-treaty

fishing and the State’s unsuccessful efforts to combat it, as well as the

district court's orders attempting to rectify the situation. See, e.g., the

following docket entries in United States vy. Washington: Docket Nos.

768, 964, 968, 970, 1148, 1177, 1381, 1494, 1555, 2436, 2511, 2618,

2636, 2787, 3405, 3406, 3420, 3439 and 3945.

In addition to the decisions here sought to be reviewed, see, e.g.,

Purse Seine Vessel Owners Ass'n. vy. Moos, 88 Wash. 2d 799, 567 P.

2d 205; Grays Harbor Gillnetiers Ass'n. v. Sandison, Wash. Sup. Ct.,

No. 45144 (argued October 31, 1977); Puget Sound Gillnetters Ass'n.

v. Sandison, Thurston County Super. Ct., No. 58107 (decided August

24, 1977); Columbia River Fishermen's Protective Union, Inc. v.

Dixie Lee Ray, Thurston County Super. Ct., No. 55339 (decided

August 25, 1977).

4

non-treaty fishermen. Neither the United States nor the

treaty tribes were parties to the action, although they

participated as amici curiae.

On June 9, 1977, the state supreme court issued an

opinion accepting respondents’ arguments though declin-

ing to issue the requested writ of mandamus. The court

first determined that, under state law, the Director of

Fisheries lacked statutory authority to restrict fishing for

any purpose other than conservation (Pet. App. D-5 to D-

7). Asserting that a state agency cannot be compelled to

act beyond its statutory authority, the court concluded

that the Director thus had no power to restrict non-treaty

fishing in order to ensure the Indians their treaty

opportunity and comply with federal law (Pet. App. D-8

to D-13).

While resolving these questions in respondents’ favor,

the court also observed that even if the necessary state

authority had existed, any allocation of fishing oppor-

tunity between treaty Indians and non-treaty fishermen

would violate the constitutional guarantee of equal

protection (Pet. App. D-8). Declining to follow the

federal court’s decision in United States v. Washington,

the court held that the treaties guaranteed to the Indians

only the same rights as are enjoyed by all non-treaty

fishermen and that the State’s regulations thus must treat

all fishermen alike (Pet. App. D-15 to D-17).

The State of Washington filed a petition for rehearing,

which was denied on October 10, 1977 (Pet. App. C).

Although the opinion of the state court normally would

‘The court stated (Pet. App. D-4):

[W]e decline to issue a writ of mandate but will set forth our

opinion upon the questions concerning the authority of the

department. We have full confidence that the director will abide

by our decision.

5

then have become final, the non-Indian fishing association

in the meantime had filed an Emergency Motion for

Issuance of Writ of Mandamus. In their motion, they

contended that the Director of Fisheries apparently was

still following the orders of the federal district court and

that the writ of mandamus which the state court had

previously declined to issue was thus required. The full

court heard oral argument on the motion on October 31,

1977, and the matter is still under submission.

In Washington State Commercial Passenger Fishing

Vessel Ass’n. v. Tollefson, 89 Wash. 2d 276, 571 P. 2d

1373 (Pet. App. B), the second case of which review is

sought, the respondent associations initiated an action for

declaratory and injunctive relief in the Superior Court for

Thurston County, Washington. (Neither the United States

nor the treaty tribes were named as parties, nor did they

participate as amici curiae.) The superior court held that

the chatlenged state regulations were invalid because they

exceeded state statutory authority (Pet. App. G). On

appeal, the state supreme court initially dismissed the case

as moot, because the fishing season to which the

regulations pertained had passed. 87 Wash. 2d 417, 553 P.

2d 113 (Pet. App. F). On petition for rehearing, however,

the court agreed to reach the merits and, on November

23, 1977, it issued an opinion reaffirming the conclusions

it had reached in Puget Sound Gillnetters Ass'n. v. Moos.

As the state court litigation gradually indicated that

Washington would not be able to comply with the federal

court’s judgment, the United States and the tribes again

invoked the continuing jurisdiction of the district court in

United States v. Washington. That court issued a series of

orders during August and September, 1977, designed to

protect the Indians’ treaty rights. By orders dated August

10 and 31, 1977, the federal court determined the treaty

Indians’ proper share of the 1977 harvest and expressly

6

removed that share from the jurisdiction and control of

the State of Washington. The court then stated that

“[jJurisdiction and harvest control over all allocations for

treaty fisheries is hereby vested in this court. The

defendants * ** are hereby enjoined from exercising

jurisdiction or any form of harvest management

authorization or control over, or in any manner

regulating, restricting, prohibiting or interfering with the

taking, fishing for, possessing or disposing of, the fish

comprising that portion of any run allocated by this court

to the treaty fisheries * * *” (Memorandum Order and

Preliminary Injunction, dated August 31, 1977, p. 19).

This action of the federal court, undertaken “reluc-

tantly, but necessarily” (id. at 17), was compelled by the

State court rulings that the Department of Fisheries could

not lawfully allocate the fish catch. Under the federal

court order the Department of Fisheries no longer was

required to allocate the catch between treaty and non-

treaty fishermen, because it no longer had control over

the treaty Indians’ share; the Department's only obliga-

tion was to ensure that non-treaty fishermen did not

harvest fish in excess of the numbers authorized by the

federal court. Even this task, however, was frustrated by

the state court decisions, which effectively prevented the

State from enforcing any restrictions against non-treaty

fishermen. At several hearings before the federal court,

the State’s Assistant Attorney General so admitted,

acknowledging that restrictions on non-treaty fishing

could be enforced only if the federal court entered an

injunction running directly against non-treaty fishermen

and punished violators through the contempt process.

(See, e.g., United States v. Washington, Transcript of

-

August 25, 1977, pp. 59-63: Transcript of August 26,

1977, pp. 31-33; Transcript of August 30, 1977, pp. 20-

21.)4

Accordingly, on August 31, 1977. and September 27,

1977, the district court issued injunctions against the non-

treaty fishermen,’ prohibiting all net salmon fishing in

certain specifically described geographic areas except

during such times and in such specific waters as were open

by regulations conforming to the court’s prior orders.°®

The court directed the State of Washington and the

United States to cite any fisherman who. having received

notice of the injunction, thereafter fished illegally, and to

require him to appear before the court to show cause why

he should not be held in contempt. Preliminary Injunction

Re: Enforcement of 1977 Fisheries (September 27, 1977),

p. 3.

The non-treaty fishermen sought review of the in-

junctions against them by filing a petition for a writ of

mandamus in the federal Court of Appeals for the Ninth

*Respondents herein have also advised the state supreme court that

State citations based on violations of state regulations promulgated to

comply with the federal judgment are routinely dismissed by the state

trial courts. Brief of Petitioners in Support of Application for Writ of

Mandamus, filed in September 1976, in Puget Sound Gillnetters

Ass'n. v. Moos (Pet. App. D).

‘United States vy. Washington, W.D. Wash.. Civil No. 9213,

Temporary Restraining Order Re: Enforcement of 1977 Fisheries

(August 31, 1977); Preliminary Injunction Re: Enforcement of 1977

Fisheries (September 27, 1977): Findings of Fact and Conclusions of

Law Re: Enforcement of 1977 Fisheries Orders (September 27, 1977).

‘The procedures for determining open fishing times and areas,

which are always subject to change during the season, are specified in

the injunction of September 27, 1977.

8

Circuit. Puget Sound Gillnetters Ass'n. v. United States

District Court, No. 77-3129. At approximately the same

time, the State of Washington appealed from all of

the district court’s orders relating to the 1977 season.

United States v. Washington, C.A. 9, Nos. 77-3654 and

77-3655. The court of appeals permitted the non-treaty

fishermen to intervene in the State’s appeals (United

States v. Washington, C.A. 9, Nos. 77-3654 and 77-3655,

Order dated November 25, 1977), and the appeals and

mandamus proceeding were consolidated and ordered

expedited. Puget Sound Gillnetters Ass'n. v. United States

District Court, C.A. 9, No. 77-3129, and related cases,

Order dated November 15, 1977. Oral argument in the

consolidated cases was heard on February |, 1978, and a

decision is expected shortly.

DISCUSSION

The United States urges that the petition jor a writ of

certiorari be denied or that action on it be deferred.

Although we believe that the decisions below are incorrect

as a matter of federal law,’ these cases do not provide an

adequate or appropriate vehicle for resolution of the

important conflict that exists between the federal and

state courts. The cases awaiting decision by the federal

court of appeals can be expected to provide a much more

suitable vehicle, and review of the controversy by this

Court should await their presentation.

1. The continuing and sensitive controversy over

Indian treaty fishing rights in the Pacific Northwest

involves not only the State of Washington and non-treaty

‘In its petition, the State of Washington urges (Pet. 14) that review

be granted because the decisions below are “ ‘probably not in accord

with applicable decisions of this court,’ ” quoting Rule 19(1)(a) of the

Rules of this Court.

9

fishermen, but also the United States and numerous

Indian tribes. More than seven years ago the United

States brought suit in federal district court to determine

the extent of treaty fishing rights in Washington waters

and to secure the protection and enforcement of those

rights. See United States v. Washington, supra. The State

of Washington had a full Opportunity in that case to

litigate these questions on behalf of all its citizens

(including, of course, non-treaty fishermen), and the

district court issued a thorough and considered decision.

which the court of appeals affirmed. We believe it would

be inadvisable for this Court now to make final

determinations regarding those treaty rights, and the

manner of their enforcement, in litigation to which neither

the United States nor the Indians are Parties.§

The absence of the United States and the Indian tribes

as parties in these lawsuits is especially significant because

the actual parties have not developed a full and balanced

record. The record in Puget Sound Gillnetters Ass'n. Vv.

Moos, for example, consists solely of stipulated

statements of fact. Although the United States and the

tribes advised the courts below that the Stipulations were

incomplete and inaccurate,’ neither the parties nor the

court made adequate changes in the stipulations and no

proof was submitted to supplement them. See Lord v.

Veazie, 8 How. 251, 254-255. By contrast, the federal

“As amici curiae, the United States and the tribes argued below

that they were indispensable parties and that the doctrine of sovereign

immunity prevented their joinder. See Puyallup Tribe, Inc. vy.

Department of Game of Washington, No. 76-423, decided June 23,

1977. These issues were never addressed by the state supreme court.

*See the following briefs filed in Puget Sound Gillnetters Ass'n. v.

Moos: Brief for the United States as Amicus Curiae (October 1976),

pp. 2-5, Brief for the United States as Amicus Curiae (October 1977),

p. 3; Brief of Amici Curiae (Indian Tribes) (October 1976), pp. 1-4;

and Brief of Amici Curiae (Indian Tribes) (October 1977), pp. I-11.

10

district court in United States v. Washington had the

benefit of a record resulting from three years of intensive

discovery and a two-week trial, and produced a 112-page

decision dealing with all aspects of off-reservation treaty

fishing (384 F. Supp. 3i2).

Moreover, it cannot be said that the parties to these

state court suits are adversaries in a real sense. Virtually

all the arguments made below by the non-Indian

fishermen were first made by the State of Washington in

United States v. Washington. Although the State did

advance arguments in these cases against the position of

the non-Indian fishermen, it told the state court that it did

not believe those arguments were correct.'!° The State of

Washington did not raise as an affirmative defense the

possibility that the federal court decision was res judicata

On many issues in the state court actions. In short, it may

be questioned whether the case presents the “honest and

actual antagonistic assertion of rights” which, in our

adversary system, is a safeguard essential to the integrity

of the judicial process. United States v. Johnson, 319 U.S.

302, 305. See also, Lord v. Veazie, supra.

If these cases provided the only foreseeable opportunity

for this Court to resolve the controversy presented by the

opposing views of the state and federal courts, the record

defects and lack of adversarial presentation might have to

be disregarded. But as we next discuss, cases are now

‘See the following briefs filed by the State in Puget Sound

Gillnetters Ass'n. v. Moos: Brief in Response to application for Writ

of Mandamus (October 1976), p. 3; and Respondents’ Supplemental

Responsive Brief to Petitions for Mandamus (October 1977), p. 5.

The State did not attempt in these briefs to make the appropriate

arguments itself; it merely summarized the position of the United

States as set forth in various federal court briefs and then provided

the state court with random excerpts from those briefs.

11

awaiting decision in the Ninth Circuit that can be

expected to provide far more satisfactory vehicles for

review.

2. The Washington Supreme Court in the instant cases

has decided that, whatever the scope of Indian treaty

fishing rights, officials of the State of Washington cannot

enforce those rights by regulation but may regulate for

conservation purposes only. As noted earlier, related

questions regarding implementation of the Indian treaty

fishing rights are pending before the Court of Appeals for

the Ninth Circuit in Puget Sound Gillnetters Ass’n., et al.

v. United States District Court, No. 77-3129, and United

States v. State of Washington, Nos. 77-3654 and 77-3655,

argued (on an expedited basis) February |, 1978. These

cases, which involve challenges to nine separate orders of

the federal district court issued pursuant to its continuing

jurisdiction in United States v. Washington, will require

the court of appeals to consider the proper allocation of

enforcement power among the tribes, state officials,

federal officials, and the federal judiciary itself.

Should this Court be inclined to review any aspect of

the fishing rights controversy, we suggest that these

pending federal cases will offer the most appropriate

vehicle for such review. First, all interested parties would

be before the Court, inasmuch as the non-Indian fishing

associations were granted permission to intervene in the

State’s appeals. Second, the full record in United States v.

Washington would be before the Court. Finally, the

problems of implementation, which are not addressed in

the state supreme court’s decisions, would be squarely

presented.

| In its petition (Pet. 20-21), the State acknowledges the

likelihood that this Court will be asked to review any

decision in the pending federal cases. Similarly,

12

respondents have publicly stated their intent to use the

Ninth Circuit cases as a vehicle to obtain review by this

Court. Since these cases would be considerably more

suitable for full and fair review of the issues than the state

cases, we urge that the Court either deny the present

petition or defer action on it until the pending federal

cases are also before the Court.!!

3. Finally, we question whether there is presently any

final judgment in Puget Sound Gillnetters Ass'n. v. Moos

from which the State of Washington can seek review. See

28 U.S.C. 1257(3). Despite its agreement with most of

respondents’ arguments, the Washington Supreme Court

declined to issue a writ of mandamus against the State or

its officials.'2) Moreover, the proceeding has been

reopened by filing of the respondents’ October 7, 1977,

Emergency Motion (see pp. 4-5, supra). This Court,

therefore, lacks jurisdiction over that case while it is still

pending in the state court; although a further order of the

state court might remedy the defect, for this Court to

grant certiorari now would be at least premature.

‘If, before the Court acts on the present petition, the court of

appeals decides the pending cases in a way that changes our appraisal

of their suitability for review, we will promptly inform the Court ina

supplemental memorandum.

‘Respondents did not cross-petition for a writ of certiorari in this

Court.

13

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied, or action on the petition

Should be deferred until the related federal Cases are

brought before the Court.

Respectfully submitted.

WaDE H. McCree, Jr..

Solicitor General.

JAMES W. Moorman.

Assistant Attorney General.

KATHRYN A. OBERLY,

Attorney.

FEBRUARY 1978.

DOJ-1978-03