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

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Supreme Court of the United

Bithasi res:

Sees Sane

Nos. 77-983, 78-119 and 78-139 | Fry

IN THE DEC *1 I97E

OCTOBER TERM, 1978

STATE OF WASHINGTON, ef al, Petitioners,

Vv.

WASHINGTON STATE COMMERCIAL PASSENGER

FISHING VESSEL ASSOCIATION, ef al.

STATE OF WASHINGTON, ef al., Petitioners,

Vv.

: UNITED STATES OF AMERICA, ef ai.

PUGET SOUND GILLNETTERS ASSOCIATION, ef al., Petitioners.

Vv.

UNITED STATES District Court For THE WESTERN

DistrRicT OF WASHINGTON, ef ai.

BRIEF FOR PETITIONERS PUGET SOUND

GILLNETTERS ASSOCIATION, PURSE SEINE VESSEL

: OWNERS ASSOCIATION, Er Al.

CHARLES E. YATES

DOUGLAS FRYER

Moriarty, Mikkelborg, Broz

Wells & Fryer

3300 Seattle-First National

| Bank Building

| Seattle, Washington 98154

Attorneys for Puget Sound

Gillnetters Association, et al.

JOSEPH T. MUJICH

JOHN P. WoRLD

Of counsel: 3920 Bank of California

Center

PHILIP A. LACOVARA Seattle, Washington 98164

GERALD GOLDMAN

: Hughes Hubbard & Reed Attorneys for

: 1660 L Street, N.W. Purse Seine Vessel Owners

__ Washington, D. C. 20036 — Association, et al.

TABLE OF CONTENTS

TABLE OF AUTHORITIES 000000.......cccccceeccceeeeeeceeeeeeeees ul

PC POY cnccccsnocececncsciesconsessnesnossnsnnssnsconostoceens l

TITY sttapcicsnccsnncesintsnssunienseceuneeneenicuesmenninentuns 3

QUESTIONS PRESENTED .....00..0......ccccccccceeecceeeeeeeeeees 5

I IITTET siled deisiebistitiatiien hcsistemsedcedashdiseetenaeeatsciiundeintabaniaaaaten 6

Be Ce ITIL -ATENIIIT ccensdsesncdnscontonninccnnsnsneuennsemiaieonsms 6

Il. THE FEDERAL APPORTIONMENT PLAN ..... 10

A. As Adopted By The District Court In 1974... 10

B. As Affirmed By the Court Of Appeals In

a aisccciovannhdehacienititdeidintaciesiasdeatlahisdiindididaniambatiilaibhad, 12

C. As Implemented By The District Court On

HUUITTII i iohcieetdsicenstetistbsnscinisascmnclinabianinindeaibiantstiddatetie 14

D. As Affirmed By The Court Of Appeals On

The Second Appeall.........0.ccecccscsscccssssesscees 15

Ill. FEDERAL MANAGEMENT OF WASHING-

TOWN PRBGBERRIES. .....cccccoscccsscccccsnsesssesscessesoscossenss 16

IV. ASSUMPTION OF JURISDICTION OVER

THE GILLNETTERS AND PURSE SEIN-

SEiaiP cocuscsincensnsssantnanenseesunetasnnspeiitasebinantanisntaletpidaess 18

ae es

UIs iecéapisniscccceusinniiaidioiansisaeniedeniidaauesiiabiddanee 18

I irccbicecensniicsinnnicccctaistenteninsimsnai 21

SENT ET et PN 23

| ______ TTENE N DADS EPR E ONL TOO TATE ITE: Te 27

I. THE TREATIES PROVIDE NO BASIS FOR

THE APPORTIONMENT OF FISH................. 27

A. Apportionment Is Fundamentally At Odds

3 With The Stevens Treaties Themselves

A And With The Equal Protection Of The

je)

—

Tl sccsecenscitsssiiaitidaiiadiadainslidaabietdiceadiimeainiald 27

B. The Rationales Adopted By The Lower

Federal Courts To Justify An Apportion-

ment Are Untenablc .............ccccccccccssssessvsves 31

CONCLUSION

Il. THE DISTRICT COURT'S PLANS FOR

ADMINISTERING THE STATE’S FISH-

ERIES EXCEEDED ITS_ CONSTITU-

TIONAL AND EQUITABLE POWERS ..........

A. Even If An Apportionment Of Fish Were

Permissible, The Particular Apportion-

ment Adopted Below Cannot Be Justified

RE ES

. The Fish Subject To Apportion-

3. Fish Taken On The Reservation ...

4. Fish Taken For Subsistence Or

Ceremonial Purposes .................

5. Hatchery-Reared Fish ...................

6. Failure To Exercise Sound Dis-

ee itcntnceniesciiatenitiienainccnnticaienns

B. The District Court Lacked The Power To

Enforce The Treaties By Imposing De-

tailed Allocation In The Absence of

Implementing Legislation By The Federal

Government Or By The State Of

TTT isis scidinnisinetitsianehiibeiditenid biasainntinaatsiiass

C. A Federal District Court May Not Mandate

That State Officials Act Affirmatively In

Excess Of Their Authority Under State

TREN ROA IN hs Sn RD OR

Ill. DUE PROCESS BARS EXTENSION OF THE

DISTRICT COURT’S INJUNCTIONS TO

NON-TREATY FISHERMEN WHO WERE

NOT PARTIES TO THE MAIN ACTION

AND ALSO ENTITLES THEM TO CON-

TEST ISSUES THE STATE MAY HAVE

LITIGATED UNSUCCESSFULLY .................

A. The State Was Not An Adequate Repre-

sentative Of The Non-Treaty Fishermen...

B. Privity Is Not A Substitute For Adequate

RESET EE EO ar IC NOR

C. Non-Treaty Fishermen Are Not Affiliated

With The State Of Washington For Pur-

poses Of Applying Injunctions To Them

Beata cal ass aa ATS etn a

EEE EEE EEE EEE EEE EEE EEE EEE HEE EEE EEE EEE EEE EE EEE

i iii

TABLE OF AUTHORITIES

CASES:

Alemite Manufacturing Co. v. Staff, 42 F.2d 832 (2d

I etn cateattadiaeadicanittieninancasmnninnennabentint

Antoine v. Washington, 420 U.S. 194 (1975) ..............

Arizona v. California, 373 U.S. 546 (1963).................

Backo v. Local 281, 438 F.2d 176 (2d Cir. 1970),

cert. denied, 404 U.S. 858 (1971) ............ccccccceeeeeeeees

Baker v. Carr, 369 U.S. 186 (1962) ..........ccccceeeeeeseeeees

Bell vy. School Board of Powhatan vines 321 F.2d

I a onteetibons

Board of Supervisors of Carroll County v. United

States ex rel. Reynolds, 85 U.S. (18 Wall.) 71

Se svecsansinsliosanstingnie

Bolling v. Sharpe, 347 U.S. 497 (1954) occas

Bradley v. School Board, 5\ F.R.D. 139 (E.D. Va.

SERRE I ETE Fle eee

Brewer v. Hoxie School District No. 46, 238 F.2d 91

Bullock v. United States, 265 F.2d 683 (6th Cir. ),

cert. denied, 360 U.S. 909 (1959) 00.0.0... ecccccce cesses

Burns v. Richardson, 384 U.S. 73 (1966) ....................

Carroll vy. Presidents and Commissioners of Princess

I I I I cscs csidanemmtotcdnmnnnendnnes

Chae Chan Ping v. United States, 130 US. 581

gat aE a

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

i ali ica sencenlicitanansainenmnenieaneds

Choctaw Nation of Indians v. United States, 318 U.S.

a eledaianianaddlimninien

City of Chicago v. General Motors Corp., 332 F. Supp.

285 (N.D. Ill. 1971), aff'd 467 F.2d 1262 (7th Cir.

NT eR EIS Oe ce eC CO

Page

67,68,69

28,59

57,58,68

City of Tacoma v. Taxpayers of Tacoma, 357 US.

Ee I cteiiainanichsdiaiiedenbiniinhiiecaicimmaiatiemiantvepnnen

Collins v. Hardyman, 341 U.S. 651 (1951) ......0000.000....

Columbia River Fishermen’s Protective Union v. Haw,

Thurston County Cause No. 56658.................000000000

Columbia River Fishermen’s Protective Union vy.

Moos, Thurston County Cause No. 55338................

Columbia River Fishermen’s Protective Union v. Ray,

Thurston County Cause No. 58054..............::cccceeeeees

Connor v. Finch, 431 U.S. 407 (1977) .............ccceeceeeees

Cooper v. Aaron, 358 U.S. 1 (1958)... eee eee eens

Crowell v. Benson, 285 U.S. 22 (1932) .........ccccccceeeeeee

Dayton Board of Education v. Brinkman, 433 U.S.

UN hai alan arated liad Liahinnniadenlinialastiemte

Department of Game of the State of Washington vy.

Page

Puyallup Tribe, 414 U.S. 44 (1973) ( Puyallup 11) .. 28,33,39,

Department of Game v. Puyallup Tribe, Inc., 86

Wash.2d 664, 548 P.2d 1058 (1976)...

Dierks v. Thompson, 414 F.2d 453 ( Ist Cir. 1969)......

Doe ex dem. Poor v. Considine, 73 U.S. (6 Wall.) 458

| RARER SRE RRR ey ees sac ree er eR «1 Wer een

Douglas v. Sea Coast Products, 43\ U.S. 265 (1977)..

Dreyfus v. Von Finck, 534 F.2d 24 (2d Cir.), cert.

PA |, en eeeen

Ex Parte Young, 209 U.S. 123 (1908) «0.0.0.0... eee

Ferrell vy. Dallas Independent School District, 392

F.2d 697 (Sth Cir.), cert. denied, 393 U.S. 856

Sel ondehncesaliiaieaabdanicaniadenediiciangiarnbineaiddndéibabuceannniiinns

| SERIA Rota NOS EPPS RRS er NO ate OO

Foster v. Nielson, 27 U.S. (2 Pet.) 253 (1829) .....0......

Fox Film Corp. v. Muller, 296 U.S. 207 (1955)...........

Garner v. Louisiana, 368 U.S. 157 (1961 )........0....000...

Georgia v. Pennsylvania R.R., 324 U.S. 439 (1945)...

42,48

42.43

GP ionic cnuisinsierieenesivacedibemcetennnieniendiinianietetmnindunenitnartinaiien

Se pa SN Pee SO OOO

Gonzales v. Cassidy, 474 F.2d 67 ( Sth Cir. 1973)........

Greene v. McElroy, 360 U.S. 474 (1959) wooo

Griffin v. County School Board of Prince Edward

eo BS | | ee eee

Hansberry v. Lee, 311 U.S. 32 (1940) oo.

Hartman v. State Game Commission, 85 Wash.2d

eis ne ies

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972).......

Hecht Co. v. Bowles, 321 U.S. 321 (1944) oo...

Herrlein v. Kanakis, 526 F.2d 252 (7th Cir. 1975) .....

Hicks v. Miranda, 422 U.S. 332 (1975) coccccccccccccccceeeeee

Huffman v. Pursue Ltd., 420 U.S. 592 (1975)...

International Shoe Co. v. Washington, 326 U.S. 310

SauUIE a Ninth: ctiiousieiiceibinsedesegectobasidiisecbindiastietianviibsianiidiitienss

Jenson vy. National Marine Fisheries Services, 5\2

Sa ee a eas

Juidice v. Vail, 430 U.S. 327 (1977) oo. ees

Kansas v. Colorado, 206 U.S. 46 (1907) .0.......ccccccccceeee

Kasper v. Brittain, 245 F.2d 92 (6th Cir.), cert.

I Be I te Oe D citccccccentencnconpteicentnnacesn

Lukenas v. Bryce’s Mt. Resort, Inc., 66 F.R.D. 69

al ariel caeriatteeteiclid iaiecades

Mariani v. Tolleson, Thurston County Cause No.

RE LEAR SS ae ae ae See

McClanahan yv. Arizona Tax Commission, 411 U.S.

Miller v. California, 413 U.S. 15 (1973) ......0000..ccceeee

Milliken v. Bradley, 433 U.S. 267 (1977) ...........00.0000.

Milliken v. Bradley, 418 U.S. 717 (1974)...

57,58,59

50,62

Minnesota v. National Tea Co., 309 U.S. 551 (1940).

Missouri v. Holland, 252 U.S. 412 (1920) ...................

Missouri v. Illinois, 180 U.S. 208 (1901) ....................

Missouri ex rel. Laclede Gaslight Co. v. Murphy, 170

ils See ee ei icinscntniccisdiacenitencdasiidueciasnistaninasecisneveneses

Mudd v. Busse, 68 F.R.D. 522 (N.D. Ind. 1975) ........

Mullane v. Central Hanover Bank and Trust Co., 339

ETE IE TLRS: Aaa ae ee

Mullaney v. Wilbur, 421 U.S. 684 (1975) .......... eee

National Indian Youth Council v. Bruce, 485 F.2d 97

(10th Cir. 1973), cert. denied, 417 U.S. 920 (1974)

National League of Cities v. Usery, 426 U.S. 833

I UIT isnsicchccchstnidtleipaniolingnspadeeeniesssbieideialaniasiiiadibblannennnintoe

Nebraska v. Wyoming, 295 U.S. 40 (1935) ...........

New Jersey v. New York, 345 U.S. 370 (1953) (per

IED cdestnntincesncnnestcmnstirieainsianiaeenniinermnannnacin

New York v. New Jersey, 256 U.S. 296 (1921).............

New York ex rel. Kennedy v. Becker, 241 U.S. 556

ciated ahicetlaccdien acini eiteiedeideautaiidianenennselinniain

North Dakota v. Minnesota, 263 U.S. 365 (1923).......

Northwestern Bands of Shoshone Indians vy. United

BS Een

Oetjen v. Central Leather Co., 246 U.S. 297 (1918)...

Oregon v. Mitchell, 400 U.S. 112 (1970)...

Oregon Gillnetters v. Moos, Thurston County Cause

SN TE tiiidseiasiseenpniatabiatibdehlinkaenhaiadiinhieadicepcbiiniendéminibednionitn

TTI ssidsieckadhactashclottabiadaaiaindeibdsiedeindabadipbniddiaidisdaidatiaaiiabineninns

O’Shea v. Littleton, 414 U.S. 488 (1974).....................

Pennsylvania v. West Virginia, 262 U.S. $53 (1923)...

People of Saipan v. United States Department of

Interior, 502 F.2d 90 (9th Cir. 1974), cert. denied,

ay SET UIITIN T ccnliadnciscnnccdsssinenentinarsiininnebionienese

Petersen v. Fee International Litd., 435 F. Supp. 938

(W.D. Okla. 1975)

Page

52,55

33,48

28,46,48

Vil

Phillips v. Klassen, 502 F.2d 362 (D.C. Cir.), cert.

denied, 419 U.S. 991 (1974)

Puget Sound Gillnetters Association vy. Tollefson,

Thurston County Cause No. 50757................00000000000 62

Puget Sound Gillnetters Association v. Moos, 88

Wash.2d 677, 565 P.2d 1151 (1977), cert. granted,

47 U.S.L.W. 3265 (U.S. Oct. 16, 1978) (No. 77-

pea easesnscibidisinsecscinbsusedbecbeeelansieinaciaialaiisaibbcinciasedignitiliginaninenedis 2,7,9,

Purse Seine Vessel Owners Association v. Moos, 88

Wash.2d 799, 567 P.2d 205 (1977) ......... ccc eeeeeeees 16,50,62

Purse Seine Vessel Owners Association vy. United

States Department of State, (9th Cir.) (No. C77-

SN aah ceaeinbiblarihaieaeiad ithaca pstsipeciibainnalibieaie 46

Puyallup Tribe, Inc., v. Department of Game of the

State of Washington, 433 U.S. 165 (1977) ( Puyal-

Seer ari iesidivcchpndinsciepenindiinandibceaadinchiinaiabiiitaebditeaniiiiaaintamasandiis 28,38,42,

Puyallup Tribe v. Department of Game of the State of

Washington, 391 U.S. 392 (1968) ( Puyallup /) ...... 28,29,33,

42,48

Regal Knitwear Co., v. NLRB, 324 U.S. 9 (1945)....... 64,69

Rizzo v. Goode, 423 U.S. 362 (1976) ........cccccccceceeeeeeeee 51,5354,

Robertson v. General Electric Co., 32 F.2d 495 (4th

Cir. ), cert denied, 280 U.S. 571 (1929)... 43

Sam Fox Publishing Co. v. United States, 366 U.S.

ihe et aa Ae eae ee 57

Schlesinger v. Reservist Committee to Stop the War,

I a acehntlnnian 43

Schroeder v. Moos, Thurston County Cause No.

hee RES aR Oe APO Sno RS Le 62

South Carolina ex rel. Phoenix Mutual Life Insur-

ance Co. v. McMaster, 237 U.S. 63 (1915) .............. 40

Stefanelli v. Minard, 342 U.S. 117 (1951)................... S|

Steffel v. Thompson, 415 U.S. 452 (1974) .............0..... 5]

Vill

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971).............. cnienisaiainsinpeiiieiiadiaaimaana

Swetland v. Curry, 188 F.2d 841 (6th Cir. 1951).........

Takahashi v. Fish and Game Commission, 334 U.S.

Ce EE A eS RIES

Teas v. Twentieth Century Fox Film Corp., 413 F.2d

COGS (SURe Gee. TOTO enntscsesanssinoeiedianimandiaanaa

Thaxton v. Vaughan, 321 F.2d 474 ( 4th Cir. 1963)...

Toomer v. Witsell, 355 U.S. 385 (1948) .........cccccecceeeee

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

United Pharmacal Corp. v. United States, 306 F.2d

DUS ( BOS CR. FS DB etensecccincennesseniceinetiiaeeiaiamimasiaiis

United States v. Hall, 472 F.2d 261 (Sth Cir. 1972) ...

United States v. Nevada, 412 U.S. 534 (1973) ............

United States v. Oregon, 302 F.Supp. 899 (D.Ore.

DDD acxccxsccnssnssenssnsnitenttiintanemisinszcennsianinaiaanaeannn

United States v. Washington, 573 F.2d 1118 ( 9th Cir.

1978), cert. granted, 47 U.S.L.W. 3265 (U.S. Oct.

16, 1978) (Nos. 78-119 & 78-139) oo... ceeeeees

United States v. Washington, 573 F.2d 1123 ( 9th Cir.

1978, cert. granted, 47 U.S.L.W. 3265 (U.S.Oct.

16, 1978) ( Nos. 78-119 & 78-139) oo... eee eeeee

United States v. Washington, 520 F.2d 676 (9th Cir.

1975 ) aff’ 384 F. Supp. 312 (W.D. Wash. 1974).

cert. denied. 423 U.S. 1086 (1976) ccccocccccscecccseccosssse,

United States v. Washington, 384 F. Supp. 312

' (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir.

1975 ), cert. denied, 423 U.S. 1086 (1976) ...............

69,70

62,69,71

2,13,14,

29,36,37,

40,62,72

9.11.12.

14.29.41.

”

Page

United States v. Winans, 198 U.S. 371 (1905)............ 28,26,48

United States v. Yazell, 382 U.S. 341 (1966) .............. 55

United States ex rel. Johnson vy. County Court of

Clark County, 95 U.S. (5 Otto. ) 769 (1878)............ 52

University of California Regents v. Bakke, 438 US.

aE 29

Ward v. Luttrell, 292 F. Supp. 162 (E.D. La. 1968) ... 63

Washington State Commercial Passenger Fishing

Vessel Association y. Tollefson, 87 Wash.2d 417,

553 P.2d 113, on rehearing, 89 Wash.2d 276, 571

P.2d 1373 (1977), cert. granted, 47 U.S.L.W. 3265

(U.S. Oct. 16, 1978) (No. 77-983) ..........ccccceeeeeeeee 2,9, 16,

30,50,55,

Wright v. County School Board, 309 F. Supp. 671

(E.D. Va. 1970), rev'd on other grounds, 442 F.2d

570 ( 4th Cir. 1971), rev'd, 407 U.S. 451 (1972) ..... 52

Wyoming v. Colorado, 286 U.S. 494 (1932) ............... 65

Younger v. Harris, 401 U.S. 37 (1971)... eee 51,55

Z&F Assets Realization Corp. v. Hall, \14 F.2d 464

(D.C. Cir. 1940), aff'd, 311 U.S. 470 (1941)... 44

Zenith Radio Corp. v. Hazeltine Reasearch, 395 US.

a cscnenssontagooonncs 58

CONSTITUTION AND STATUTES:

United States Constitution:

EE 39,64

i senteesmsonense 53

a aicetueccncnane 52

Fourteenth Amendment ......................000-scccceeseeeees 29,3039,

United States Statutes:

Fishery Conservation and Management Act of

1976, 16 U.S.C. § 1801 ef seg. (1976) .............. 13,48,54,

ee OD . cccsmsnsccunesoconss 3

ee es SF OR PD © CPW vcecccnnccnesccccccencccsscosceee 3

Page

Washington Statutes:

Wash. Rev. Code,

2 ERT Ran neon NTED ere eee pret 50

I i a 50

jE Serer ne eennerren Mame FS oo 50

iF SE ET ip:sicintdicetiginstiidieiavscneneinnitbiaaieiauddiedtnidine Weedinl 46

ey at icisesistitniceiiiasiatcppeciuth cduiekdieipeaiaaaaiadaasaiie claus 28,32

RULES:

Federal Rules of Civil Procedure 65............ ........ 4,19,20,

26,27,67

68,69,70,

71,73

TREATIES:

Treaty of Medicine Creek, 10 Stat. 1132 (1854). 3,38

Treaty of Point Elliott, 12 Stat. 927 (1855) ..00...... 3

Treaty of Point No Point, 12 Stat. 933 (1855)..... 3

Treaty with the Makahs, 12 Stat. 939 (1855) ...... 3,31

Treaty with the Yakimas, 12 Stat. 951 (1855)... 3,31,40

Treaty of Olympia, 12 Stat. 971 (1855) 0000000000... 3

SECONDARY AUTHORITIES:

Hart, Relations Between State and Federal Law,

54 Colum. L. Rev. 489 (1954)... cece 51,52

Note, Defendant Class Actions, 9\ Harv. L. Rev.

Se INI ccsiscniciieantenattimmceicsiecnibicdameaiacmiaasliimieas 58

Note, The Importance of Being Adequate: Due

Process Requirements in Class Actions Under

Federal Rule 23, 123 U. Pa. L. Rev. 1217

Fer aisiaidesinisiiniencehicenctucintocutdanidiinanddeamaiadiecads 58

F. Cohen, Handbook of Federal Indian Law

1 | REDE OVE Tee “hs PP ERETAY 33,43

K. Henry, Background Document on Northwest

Salmon Fisheries (U.S. Dep’t of Commerce,

fk, RRR ER MMM ia). | 4

Restatement (Second), Foreign Relations Law

of the United States, § 141 (1965) ..........cccc.e. 44

Webster’s American Dictionary of the English

Pe GARR CN RE alates 31

C. Wright & A. Miller, Federal Practice and

PO © TID GIFTED vncsccceccccesecsevnccuneensnseuanne 64,65

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No. 77-983

STATE OF WASHINGTON, ef al., Petitioners,

WASHINGTON STATE COMMERCIAL PASSENGER

FISHING VESSEL ASSOCIATION, ef al.

No. 78-119

STATE OF WASHINGTON, ef al., Petitioners,

Vv.

UNrTeD States Or AMERICA, ef al.

No. 78-139

Pucer SOUND GILLNETTERS ASSOCIATION, ef al., Petitioners,

Vv.

Unitrep States District Court For THE WESTERN

District OF WASHINGTON, ef al.

BRIEF FOR PETITIONERS PUGET SOUND

GILLNETTERS ASSOCIATION, PURSE SEINE VESSEL

OWNERS ASSOCIATION, ET AL.

OPINIONS BELOW

On October 16, 1978, the Court granted certiorari on three

petitions ( Nos. 77-983, 78-119 and 78-139) and by order dated

November 13, 1978, consolidated the cases.

No. 77-983 involves the petition by the State of Washing-

ton for review of two decisions by the Washington State

Supreme Court: Puget Sound Gillnetters Association v. Moos, 88

Wash.2d 677, 565 P.2d 1151 (1977) (App. D of Petition No

77-983) and Washington State Commercial Passenger Fishing

Vessels Association v. Tollefson, 89 Wash.2d 276, 571 P.2d

1373 (1977) (App. B of Petition No. 77-983). The latter case

is the decision upon reconsideration of 87 Wash.2d 417, 553

P.2d 113 (1977) (App. F of Petition No. 77-983). In those

decisions the Washington State Supreme Court found that

United States treaties of 1854 and 1855 did not entitle treaty

Indians to a special allocation of the State’s harvestable fishery

resource. The court further concluded that the Washington

Department of Fisheries is not authorized by state law to

allocate fish to Indian fishermen, but rather must treat all

fishermen in the same class equally.

The State of Washington in No. 78-119 and commercial

fishing groups in No. 78-139 separately petitioned for review of

United States v. Washington, 573 F.2d 1123 (9th Cir. 1978)

(App. A-| of Petition No. 78-119). In that decision the Ninth

Circuit upheld a specific allocation of the fishery resource and

the direct control by the district court of fishing activities in

western Washington as an exercise of continuing jurisdiction in

United States v. Washington, 384 F. Supp. 312 (W.D. Wash.

1974) (JA 63), aff'd, 520 F.2d 676 (9th Cir. 1975) (JA 39),

cert. denied, 423 U.S. 1086 (1976).

Also included in the petitions in Nos. 78-119 and 78-139

was a second decision by the Ninth Circuit in United States v.

Washington, 573 F.2d 1118 (9th Cir. 1978) (App. A-29 of

Petition No. 78-119). The Ninth Circuit concluded that the

district court’s determination that treaty Indians do not have to

comply with certain regulations of the International Pacific

Salmon Fisheries Commission, and that they are entitled to

50% of the American harvest of those fish runs, was moot.

In No. 78-139, the Court has also granted certiorari before

judgment in the court of appeals to review an unreported

“preliminary injunction” of the district court (JA 487-490),

entered on June 6, 1978, establishing regu'ations for future

fishing seasons.

JURISDICTION

In No. 77-983, the judgment of the Supreme Court of

Washington on reconsideration was entered on October 10,

1977. A timely petition for a writ of certiorari was filed by the

State of Washington on January 2, 1978. This Court’s jurisdic-

tion rests on 28 U.S.C. § 1257(3).

In Nos. 78-119 and 78-139, the judgments of the Court of

Appeals for the Ninth Circuit were entered on April 24, 1978.

The petition for a writ of certiorari by the State of Washington

in No. 78-119 was filed on July 21, 1978, and the petition by the

Puget Sound Gillnetters Association ef al. in No. 78-139 was

filed on July 24, 1978. The petition in No. 78-139 also sought

certiorari before judgment to review the preliminary injunction

of the United States District Court for the Western District of

Washington entered on June 6, 1978; a timely notice of appeal

from that order was filed, and the case was pending in the

Court of Appeals for the Ninth Circuit as No. 78-2523. This

Court’s jurisdiction over both petitions rests on 28 U.S.C. §

1254( 1).

TREATIES AND RULES INVOLVED

1. The treaties involved in this case are the Treaty of

Medicine Creek (10 Stat. 1132), the Treaty of Point Elliott (12

Stat. 927), the Treaty of Point No Point (12 Stat. 933), the

Treaty with the Makahs (12 Stat. 939), the Treaty with the

Yakimas (12 Stat. 951), and the Treaty of Olympia (12 Stat.

971). With immaterial variations, these treaties each provide

(10 Stat. 1132-1133):

“ARTICLE I. The said tribes and bands of Indians

hereby cede, relinquish, and convey to the United States,

all their right, title, and interest in and to the lands and

country occupied by them, bounded and described as

follows ....

“ARTICLE II. There is, however, reserved for the

present use and occupation of the said tribes and bands,

the following tracts of land, *** all which tracts shall be set

apart, and, so far as necessary, surveyed and marked out

for their exclusive use; ... .

“ARTICLE IIL. The right of taking fish, at all usual

and accustomed grounds and stations, is further secured to

said Indians, in common with all citizens of the Territory,

and of erecting temporary houses for the purpose of curing

%°

2. Rule 65 of the Federal Rules of Civil Procedure

provides in pertinent part:

“Rule 65. INJUNCTIONS

“(a) Preliminary Injunction.

“Notice. No preliminary injunction shall be issued

without notice to the adverse party.

required. Every temporary restraining order granted with-

out notice . . . shall define the injury and state why it is

irreparable and why the order was granted without notice;

and shall expire by its terms within such time after entry,

not to exceed 10 days, as the court fixes, unless within the

time so fixed the order, for good cause shown, is extended

for a like period....

“(d) Form and Scope of Injunction or Restraining

Order. Every order granting an injunction and every

restraining order shall set forth the reasons for its issuance;

shall be specific in terms; shall describe in reasonable

detail, and not by reference to the complaint or other

document, the act or acts sought to be restrained; and is

binding only upon the parties to the action, their officers,

agents, servants, employees, and attorneys, and upon those

persons in active concert or participation with them who

receive actual notice of the order by personal service or

otherwise.”

QUESTIONS PRESENTED

1. Whether the federal courts properly construed the

> = assurance in the Stevens treaties that members of certain Indian

tribes would have the right to fish “in common with” other

fishermen as providing those Indians a guaranteed allocation of

the harvestable fish and as excluding other fishermen from an

equal opportunity to fish.

“(b) Temporary Restraining Order; Notice; Hearing;

Duration. A temporary restraining order may be granted

without written or oral notice to the adverse party or his

attorney only if (1) it clearly appears from specific facts

shown by affidavit or by the verified complaint that 2. Whether the district court exceeded its constitutional

immediate and irreparable injury, loss, or damage will and equitable powers by:

result to the applicant before the adverse party or his

attorney can be heard in opposition, and (2) the appli-

cant’s attorney certifies to the court in writing the efforts, if

any, which have been made to give the nutice and the

reasons supporting his claim that notice should not be

(a) adopting an apportionment formula effectively

allocating more than half the harvestable fish to one small

group of fishermen without regard to the economic impact

of that allocation on the far larger group;

(b) assuming the power to enforce the treaties by

creating specific allocations of fish in the absence of

implementing legislation by either the federal government

or the State of Washington;

control over commercial fishing in the State, deliberately

displacing the State’s role in this essentially local area of

regulation; and

(d) directing state officials to perform functions that

under state law they lack authority to perform.

3. Whether the district court violated the due process and

procedural rights of non-treaty fishermen by:

(a) holding that citizens of a State are automatically

bound by rulings made in litigation to which the State was

a party, despite material differences in position and the

existence of substantial independent interests; and

(b) applying injunctions to the non-treaty fishermen

on the basis of determinations made in a litigation to which

they were not parties, and denying them an opportunity to

contest the basis for the orders.

STATEMENT

I. INTRODUCTION

The petitioners on whose behalf this brief is submitted are

two commercial fishing associations and their presidents. These

petitoners adopt the Statement contained in the Petitioner

State of Washington's Brief (at 5-35), with the following

supplementation.

This is a case in which petitioners’ livelihood as com-

mercial fishermen has been virtually destroyed by the inter-

pretation of a seemingly clear phrase in a series of Indian

treaties in a way that stands the plain object of the treaties on its

head. The issue is purely one of commercial rights: whether

one group of fishermen—treaty Indians—is entitled to a dis-

proportionately large share of the commercially harvestable

fish, to the exclusion of all the rest of the citizens of the State,

Indians and non-Indians.

Even two of the three judges of the Ninth Circuit expressed

candid doubts that the right result has been reached. Never-

theless, these petitioners, who were not even parties to the

litigation in which the misinterpretation took place, have been

placed under direct federal injunction and have been denied

the right to contest the interpretation that threatens their life's

work.

The Puget Sound Gillnetters Association and the Purse

Seine Vessel Owners Association are nonprofit organizations

whose members are full-time commercial gillnetters or purse

seiners harvesting salmon in the Puget Sound area of Washing-

ton State.’ In addition to the approximately 1,000 members of

these associations, it has been estimated that as of 1974 there

were 5,800 other commercial fishermen. 283,650 sports fisher-

men, and 794 Indian fishermen affected by these cases. The

actual number of full-time Indian commercial fishermen is

much smaller. See JA 23-24, 169 (FF 188).2

The Washington State Department of Fisheries is author-

ized under state law to regulate salmon fishing in the interest of

conservation “so as to fully utilize the harvestable portions for

the economic well-being of the citizens as a whole.” Puget

Sound Gillnetters Association v. Moos, 88 Wash.2d 677, 682.

'The gillnetters use gillnets, which are meshes that are sus-

pended from the surface of the water to form a wall against which the

salmon collide and are entangled behind the gills. The purse seiners

Set their nets in a circle that is then “pursed,” or closed, at the bottom

to trap the fish inside.

2 Unless otherwise noted, all factual references are to the Joint

Appendix, “JA.” “FF” refers to the findings of fact in United States v.

Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d

676 (%h Cir. 1975), cert. denied, 423 U.S. 1086 (1976).

565 P.2d 1151, 1153 (1977) (Pet. 77-983, at D6) (emphasis

added). As interpreted by the Washington Supreme Court,

state law does not permit the Department to apportion fish to

Indian fishermen through the manipulation of conservation

regulations; rather, state law requires that a// fishermen be

provided an equal opportunity to fish. /d.

However, commencing in 1974, Judge George Boldt of the

United States District Court for the Western District of

Washington began issuing decrees in proceedings, in which

neither the Gillnetters nor the Purse Seiners have been parties,

to allocate well more than half of the state fisheries to Indians

who, as the figures above show, comprise a tiny percentage of

the total fishermen. These orders rest on the court’s inter-

pretation of treaties executed by the United States in 1854 and

1855 with Northwest Indian “tribes” that the United States

deliberately created for the purpose of extinguishing Indian

claims to lands in Washington Territory. JA 107-09 (FF 17-

19),

Each of these treaties provides only that “[t}he 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....” JA 97-99 (FF 1) (emphasis added). As

Judge Boldt himself found, “[t}he Indians were assured by

| Isaac Stevens, the first Governor and Superintendent of Indian

Affairs of the Washington Territory] and the treaty commis-

sioners that they would be allowed to fish, but that the white

man also would be allowed to fish.” JA 109 (FF 20).

Although today it is conceded on all sides that “tilt is

necessary for the fishing activity of Indians and non-Indians to

be regulated in order to assure that conservation of the fishery

resource is achieved” (JA 166 (FF 181)), this was not true

when the Stevens treaties were negotiated. On the contrary,

“[{b Jecause of the great abundance of fish resources and the |

limited populations, there was no need to regulate the taking of

fish by either Indians or non-Indians at treaty times.” JA 103

(FF 9). See also JA 50, 52, 72, 109 (FF 20). Indeed, it was

not until the development of a large-scale commercial fishing

industry in the last decades of the Nineteenth Century that the

need to implement conservation measures first arose. JA 102-

03 (FF 8). Understandably, as the district court found, there is

virtually “no evidence at the time of the treaties that either

party intended to restrict the others fishing because it was not

contemplated that they would interfere with each other.” JA

113 (FF 28),

In short, contrary to the dictates of state law, the district

judge has concluded that a ny portion of the State’s com-

mercial fishermen today are entitled to more than half the

salmon fishery resource. This bizarre result was held to be

compelled by the language of the treaties, even though com-

mon sense and the historical evidence found by the court itself

show that the treaties did not contemplate different treatment

for any fishermen, Indian or non-Indian, in the event of

scarcity. Moreover, to carry out this apporuonment— which the

state courts have held to be inequitable and. indeed, uncon-

stitutional3—Judge Boldt has assumed final responsibility for

management of all of Washington's fisheries, summoned a

number of federal agencies to effectuate his plan, directed the

State Department of Fisheries to assist the federal allocation

program despite the Department’s lack of legislative authority

to do so, and issued injunctive orders against the Gillnetters,

Purse Seiners, and others who have never been subject to the

court's jurisdiction or enjoyed their day in court on the merits of

the allocation program.

The impact of these extraordinary measures on the Gillnet-

ters and Purse Seiners can scarcely be overstated. In the four

years prior to the district court’s initial decision in 1974, the

commercial net fishing industry in the southern Puget Sound

3 See Washington State Commercial Passenger Fishing Vessel

Ass'n v. Tollefson, 89 Wash.2d 276, 571 P.2d 1373 (1977) ( Pet. 77-

983, App. B); Puget Sound Gillnetters Ass'n v. Moos, 88 Wash.2d 677,

565 P.2d 1151 (1977) ( Pet. 77-983. App. D).

averaged 34 days of fishing per season.4 In 1976, as a con-

sequence of that decision, this allotment for gillnet fishermen

like petitioners dwindled to a mere three days. As discussed in

the State’s brief (at 7-8), according to findings issued by the

U.S. Nauonal Marine Fisheries Service, the average net earn-

ings of Gillnetters dropped between 1973 and 1974 from

$9,379 to $1,527, and for Purse Seiners in the same period from

$30,568 to $13,026. At the same time, as a result of their age

and commitment to this industry, these men have not been able

to shift to new careers.

To place the issues of these cases in perspective, it Is

necessary to review in detail the rationale by which the district

court concluded that its apportionment plan was required, the

different rationale by which the court of appeals affirmed it, and

the irregular procedures that the federal courts have sanctioned

to implement it.

ll. THE FEDERAL APPORTIONMENT PLAN

A. As Adopted By The District Court In 1974

In his initial decision in 1974 Judge Boldt concluded that

the Department of Fisheries is required to implement a com-

plicated formula for apportioning fish between the 794 treaty

Indian fishermen and the remaining 290,250 fishermen, most

but not all of whom are not Indians. United States v.

*See K. Henry, Background Document on Northwest Salmon

Fisheries (U.S. Dep't. of Commerce, August 1977) Table I.

> According to the Service's findings, the average number of

years spent in commercial fishing by individual gillnetters is 16; for

purse seiners, this figure is 28. . |

Evidence concerning the impact of the federal court's apportion-

ment plan on the Gillnetters and Purse Seiners is scant in the record

before the Court, since the associations were not parties to any of the

Original proceedings in the district court, and then were expressly

denied the opportunity to submit such evidence when the district court

summarily extended its decrees to them.

Washington, 384 F. Supp. 312 (W.D. Wash. 1974). Although

the district judge filed a lengthy opinion and elaborate findings

of fact and conclusions of law, the only explanation given by

the court for any apportionment at all appears in the following

single paragraph:

“By dictionary definition and as intended and used in

the Indian treaties and in this decision ‘in common with’

means sharing equally the Opportunity to take fish at ‘usual

and accustomed grounds and stauions’; therefore, non-

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 opportu-

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

as stated above.”

Id. at 343 (emphasis altered; footnote omitted ),

In short, Judge Boldt determined that it IS Necessary to

divide fishing opportunities equally between treaty Indians as a

group and all other non-treaty fishermen merely because of the

treaty language Providing rights for all Persons to fish “in

common” with each other, Significantly, in the 1974 decree the

court undertook to assure an “opportunity” for the treaty

Indians to take at least 50% of the harvestable fish, not to

guarantee that they actually achieve that level of SUCCESS.

The formula adopted by the court and sull in effect is

considerably more complex than a 50-50 split. Specifically, the

court's apportionment plan calls for the treaty Indians to have

the opportunity to take 50% of the total number of fish within

the State’s regulatory jurisdiction that. absent harvest en route,

® The Indian beneficiaries of the apporuonment even include a

group of intervening “tribes” not recognized by the United States.

These individuals are allowed to fish without licenses if they Sauisfy

the court of their “blood quantum.” In addition, the district judge

awarded the same special privileges to these Indians as to the

members of recognized treaty tribes if they are invited to fish by one

of those tribes.

would be available for harvest at the treaty Indians’ usual and

accustomed fishing places, subject to the following adjustments:

~—Subtract from the total number of fish subject to

apportionment not only the number of fish necessary for

adequate escapement to preserve the fish run, but also the

number of fish taken by the Indians on the reservation and

the number of fish they say they want for subsistence and

ceremonial uses.

—Further adjust the Indian allocation upward and

the non-treaty allocation downward to compensate for the

disproportionate number of fish that non-Indian fishermen

take in the ocean outside the State’s regulatory jurisdiction.

Id. at 343-44. The number of fish that the Indians may take,

free from apportionment, on the reservation, for Subsistence,

and for ceremonial use rests in the Indians’ discretion. See id.

at 417 (9 17). Moreover, fish caught by the Indians in all-

ciuzen fisheries (as distinguished from their reservations and

other “usual and accustomed” places) are not counted toward

the Indian share, but are included in the non-Indians’ share. /d.

at 409-10 (4 7). In addition, despite the fact that the

Department of Fisheries has “contributed significantly to

Indian catches” through the state-financed planting of

hatchery-reared fish (JA 177 (FF 210)), artificially propagated

fish are subject to the 50%-plus allocation.’

B. As Affirmed By The Court Of Appeals !n 1975

The court of appeals sustained the apportionment as

ordered by the district court, but relied on an entirely different

theory. Rather than rest the allocation on the language of the

’ The district court specifically ruled that envirely artificially

propagated runs are subject to apporuonment. Id. at 411 (9 19).

Although initially the court refrained from deciding v hether the -

rule governs individual hatchery-reared fish in mixed runs, id. at 34 .

45, the apportionments ordered by the court since then have applied

to these fish. See JA 3, 26-27.

However, the “permanent” determination whether treaty rights

extend to hatchery fish is supposed to be decided in a second phase of

this case ( Phase II), presently pending.

treaties, the court analogized the suit to an application for an

equitable partition of Property held by co-tenants—here, assert-

edly, the treaty Indians as a group and all others as a group.

United States v. Washington, 520 F.2d 676. 686 n.3, 687 (9th

Cir. 1975). The court of appeals also affirmed the specific

allocation formula adopted by the district court.8

Treating the details of the apportionment as subject to “a

great amount of discretion” in accordance with the equitable

Paruuion theory, the court of appeals ruled that the lower

“court’s apportionment was well within its discretion.” The

court reasoned that the 50-50 allocation “reflects the equality

existing between the two bargaining parties and [since the

Indians allegedly regarded the right to fish as a communal

property right belonging to the tribe] best effectuates what the

Indian parties would have expected if a partition of fishing

Opportunities had been necessary at the time of the treaties.” Jd

at 687-88.

8 The court ordered one modification concerning the adjustment

for fish taken outside the State’s jurisdiction. The court held that this

extra adjustment in favor of the treaty Indians should not take

account of fish caught by non- Washingtonians, since “[t}he treaty

granted equal rights at the traditional areas to Washington citizens,

and their ability to fish is equally impaired by foreign fishing.” /d. at

689.

The fish catch giving rise to “equitable adjustment” does,

however, include fish taken in the American/Canadian fishery regu-

lated by the International Pacific Salmon Fisheries Commission

(IPSFC) and in the 200-mile offshore fishery regulated by the United

States under the Fishery Conservation and Management Act of 1976.

16 U.S.C. §§ 1801 ef seg., over which the State of Washington and the

non-treaty fishermen have no control. Beczuse the United States

controls the take in the 200-mile offshore troll fishery, it can ask the

district court to compel the non-treaty petitioners to contribute their

share to the Indians for what the United States has given away

elsewhere in the 200-mile offshore fishery.

By the use of this “equitable adjustment” principle, the district

court could prevent the non-treaty petitioners from ever fishing again

in waters Over which the State has jurisdiction, since a substantial

percentage of fish otherwise destined for Washington waters are taken

in the IPSFC and the 200-mile offshore fishery.

The court of appeals also specifically upheld the exclusion

from apportionment of fish taken on the reservation because

only the Indians enjoyed the right to fish on the reservation

under the treaties. Jd. at 690. Finally, the court of appeais

affirmed the lower court’s ruling concerning fish used for tribal

ceremonies or subsistence, noting that this was uncontested by

the State. /d. The court thus did not find it necessary to discuss

the district court’s rationale for this ruling—namely, that the

opportunity to take fish for these purposes was and remains a

matter of utmost concern for the Indians. 384 F. Supp. at 343.9

C. As Implemented By The District Court On Remand

In issuing his original decree, Judge Boldt ordered a stay

pending appeal, subject to the condition that the Department of

Fisheries “make significant reductions in the non-Indian fish-

ery, as are necessary to achieve the ultimate objectives of the

Court’s decision without requiring mathematical precision . .. .”

Id. at 420 (95). The Department complied with this directive

by promulgating regulations limiting both commercial and

sports fishing. See JA 1.

Following the deniai of certiorari by this Court, 423 U.S.

1086 (1976), however, the district court adopted a revised

apportionment plan for 1977 based on certain unstated “facts..

circumstances and equities peculiar to this year’s salmon

runs.”'0 Despite the fact that the court’s initial decision was

based on the conclusion that a 50-50 allocation was required as

a matter of law, the court now provided for a different

apportionment to the Indians for many of the runs, varying

from 37% to 48%, for an overall allocation of 45%. See

Memorandum Order and Preliminary Injunction, Aug. 31,

1977, Pet. 78-119, at A44 et seg. However, while the 1974

9 The numbers of fish taken by the Indians on the reservation for

subsistence and ceremonial purposes are not trivial. See, e.g.,

Memorandum Order and Preliminary Injunction, Aug. 31, 1977, Pet.

78-119, at A43-A44.

'0 In a similar vein, the court stated without explanation that the

1977 allocations “shall not be interpreted in any way as an express or

implied modification” of the court’s earlier decision.

decree had spoken only of an “opportunity” for treaty Indians

to take 50% of the catch—a fact stressed by the Solicitor

General in opposing certiorari''—the court’s 1977 decree and

its successors are devoted to guaranteeing a disproportionately

successful catch for each treaty Indian by banning fishing by

non-treaty net fishermen. Moreover, unlike the regulations

Originally promulgated by the Department of Fisheries, the

1977 order effectuates allocations through limitations only on

commercial net (as opposed to recreational ) fishing. See

Preliminary Injunction re: Enforcement of 1977 Fisheries, Sept.

27, 1977, Pet. 78-119, at A89 er seq.

On June 6, 1978, the district court adopted similar orders

for the 1978 fishing season and subsequent years. See JA 479-

90. | Without explanation, however, the court reverted to the

original 50%-plus formula in favor of the treaty Indians, despite

the economic impact of the apportionment program on the

commercial fishing industry. JA 482 (9 1). The court

concluded that “(t]he rights of the treaty and non-treaty

fishermen have already been adjudicated, therefore economic

disruption associated with implementing the 1974 decree is not

legally cognizable.” JA 483 (4).

D. As Affirmed By The Court Of Appeals On The Second

Appeal

Adhering to its co-tenancy analogy on a second appeal, the

court of appeals sustained the district court’s special allocation

for 1977 as an “exercise of discretion.” United States vy.

Washington, 573 F.2d 1123 (9th Cir. 1978). Two members of

the panel did so, however, only because they felt bound by the

earlier decision of the court of appeals; Judges Kennedy and

Wallace separately expressed their doubts “that the rule of fifty

percent apporuonment is a necessary and proper implementa-

tion of [the Indians’]} treaty rights.” /d. at 1136. In any event,

noung that “the state does not appear to quarrel seriously with

the specific allocation” and that the “allocation can best be

"! See Br. of the United States in Opposition, Nos. 75-588, 75-

592, 75-705. at 20. _ wee

expressed and enforced . .. by numbers of fish taken,” the court

stated that “|t]he numbers question is one of degree, not one of

principle.” Jd. at 1130 & n.6.

lll. FEDERAL MANAGEMENT OF WASHINGTON

FISHERIES

The district court’s original 1974 decree was lengthy and

complex. Among other things, it prohibited the adoption or

enforcement of any Department of Fisheries regulation that

would limit the harvest of fish by treaty Indians unless the

Department first satisfied the court of the conservation need for

the regulation and that the State’s regulatory program provided

for the allocation set forth in the court’s opinion. See 384 F.

Supp. at 413-19. It also required the State to issue revised

regulations in accordance with the allocation ordered.

When the commercial net fishermen asked a state court to

enjoin the Director of Fisheries from adopting the regulations

ordered by the district court, on the ground that the Director

has no statutory authority to do so under state law, the district

court, on oral motion by the United States without notice, on

August 6, 1975 (Docket No. 1240), enjoined the state court

from any further proceedings in the matter. See Purse Seine

Vessel Owners Association v. Moos, 88 Wash.2d 799, 567 P.2d

205 (1977).

The district court, however, refused to issue a similar

injunction relating to the recreational fishery when the non-

treaty recreational fishermen sought and obtained an injunction

prohibiting the Director from reducing the sport fishing catch.

The state court held that the Department had no statutory

authority to allocate fish for the apportionment purposes man-

dated by the federal courts, and could not lawfully comply with

the federal decree to that effect. The court also ruled that the

treaties did not justify any allocation. Washington State

Commercial Passenger Fishing Vessel Association v. Tollefson,

89 Wash.2d 276, 571 P.2d 1373 (1977) ( Pet. 77-983, App. B):

see also Puget Sound Gillnetters Association v. Moos, 88

Wash.2d 677, 565 P.2d 1151 (1977) ( Pet. 77-983, App. D).

Judge Boldt responded in August 1977 by assuming con-

trol over all allocations and by removing from state regulato

Jurisdiction all fish allocated to the Indian fisheries. He os

enjoined the Department “to manage and regulate the harvest

of the portions of such runs not herein removed from the

defendants’ jurisdiction and control in such manner as will

assure the escapement from non-treaty harvest of the numbers

of fish allocated to Propagation escapement and to the treaty

fisheries - + +.” Memorandum Order and Preliminary

Injunction, Aug. 31, 1977, 1] D-F, Pet. 78-1 19, at AS6-A57

At the same ume, he adopted an elaborate plan “establish[ in

guidelines for management of salmonid resources Originatin in

OF Passing through Washington waters from the mouth of”

Puget Sound. The plan included authorization to a previously

established Fisheries Advisory Board composed of one re “

sentative of the State, one from the tribes, and the court’s ore

fishing expert to resolve disputes under the plan. Memorandum

Adopting Salmon Management Plan. Aug. 31, 1977, Pet. 78

119, at A62-A63, A75S-A76. its

| Shortly thereafter Judge Boldt issued an injunction orde-

ring the Gillnetters and Purse Seiners, among other commercial

net fishermen, not to take, possess, or sell salmon without first

determining from a telephone “hot-line” that the area to be

fished is open for non-Indian fishing pursuant to the court’s

allocation scheme. The decree also directed the State to

maintain the “hot-line,” to serve the injunction on fishermen

and along with the United States to cite any individual with

notice of the order who fished in violation of it. Preliminary

Injunction re: Enforcement of 1977 Fisheries, Sept. 27, 1977

Pet. 78-119, at A89 ef seq. See also Preliminary Injunction

Order, Oct. 17, 1977, Pet. 78-} 19, at A93 er seq.

The injunctive provisions now in effect for the 1978 fishine

season and later years are even more elaborate. In addition to

enjoining any fishing not authorized Pursuant to the “hot-line”

procedure and directing the State to maintain reasonable

surveillance to enforce the decree, Judge Boldt’s order of June

6, 1978 specifically enlists and deputizes personnel of the

National Marine Fisheries Service, the Coast Guard, and the

United States Marshal’s Service, in addition to the State

Department of Fisheries, to assist in the enforcement of the

decree by various means, including the boarding of vessels

“upon suspicion.” Preliminary Injunction re: Enforcement of

Limitations on Nontreaty Salmon Fisheries for 1978 and

Subsequent Seasons, June 6, 1978, Pet. 78-139 at Cl ef seg. 12

In sum, the ultimate authority for management of

Washington’s fisheries is now in the hands of a federal judge,

operating through specially conscripted state and federal depu-

ties. The court has assumed responsibility for approving the

adoption of state conservation regulations, providing for the

allocation of fish, and supervising and enforcing compliance.

IV. ASSUMPTION OF JURISDICTION OVER THE

GILLNETTERS AND PURSE SEINERS

A. The Orders Reviewed By The Court Of Appeals

Neither the Gillnetters nor the Purse Seiners were joined as

parties in the original federal proceedings. Indeed, although

the Purse Seiners were allowed to file a brief as amicus in the

district court, their motion to intervene was denied.'3 Nonethe-

less, as noted above, in August and September 1977 the district

court issued a series of ex parte orders purporting to regulate

the fishing activities of the Gillnetters, the Purse Seiners, and

other commercial net fishing interests directly.

The first order issued by the judge directly against non-

treaty fishermen was a Memorandum, Order and Preliminary

Injunction signed and issued on August 10, 1977, which

'2 Federal officers have, in fact, cited many fishermen for violat-

ing court orders in 1978; one third of these have been Indians. Tr.,

Nov. 3, 1978, at 14, 25. See also JA 482 (4 25).

'S Judge Boldt denied the applications of several non-treaty

fishing groups for permission to intervene. By contrast, all such

applications by Indian tribes (26 so far, including some officially

recognized tribes) have been granted.

generally declared that “[n Jontreaty fishermen shall not fish”

for salmon “unless Prior approval is Obtained from the am

the Court’s Fishery Advisory Board.”'4 On August 3] 1977,

without advance nouce tO petitioners, Judge Boldt issued 2

| On September 12. 1977, an order was entered extendin

this temporary restraining order. Again no prior notice ma

given to peutioners. On September 22. 1977, the district court

issued a “preliminary injunction” Prohibiting all gillnet and

Purse seine fishermen from taking salmon from the Straits of

Juan de Fuca in Puget Sound. Like the earlier orders ‘the

Preliminary injunction was issued without Prior notice to any

14 ,

_ oe upon realizing that the terms of this order applied

rept oa — including recreational fishermen

Or August 12, » Issued a Minute Order s cifically

— recreational fishermen from the terms of the saver 10

pul, woe ¢ 2 Ares = Commissioners of Princess

restraining order issued to Persons “without any a ie

monet, tO Invite Or permit their Participation in the proceedin . "

“<a August 31 order provided in Part ( Pet. 78-139 at ED).

i b Wedien _— = Purse seine fishermen licensed by the

Sey Genel n, uget Sound Gillnetters Association. the Purse

e Ves ei Owners Association, . . . and all Persons in active concert

or Participation with them are hereby temporarily restrained from

ae ogame Possessing, or selling salmon of any species in

'40on Of this court’s orders of August 10, 1977 or August 31, 1977

Or state regulations adopted Pursuant to the orders of this court.” |

commercial fishermen. On September 27, 1977. the district

court entered another “preliminary injunction,” closing Puget

Sound to all non-treaty net fishermen

“unless such person has first ascertained from the

Washington Department of Fisheries telephone ‘hotline’

.... that that the area to be fished is open for fishing by

non-treaty fishermen at the time the individual intends to

fish... .” Pet. 78-119, at A89-A90.

On appeal the court of appeals dismissed challenges to the

pervasive non-compliance with Rule 65 as “technical attacks

; We find them to be without merit.” United States vy.

Washington, supra, 573 F.2d at 1133 n.16. In addition, the

court sustained the application of the September 27, 1977

injunction to non-parties on the fiction that they are “privies” of

the State, which had been a party to the litigation from the

outset. The court reasoned:

“| U]nder Washington law the citizen's right to take fish is

purely derivative of the state’s power to regulate rights in

the fish. The fisher’s interest is therefore derivative of the

state’s interest; the fishers are in privity with the state and

are bound by actions affecting its sovereign interests to

which ut is a party.” $73 F.2d at 1132.

Evidently recognizing that the State was an inadequate repre-

sentative of the interests of the Gillnetters and the Purse

Seiners, the court lamely concluded that “[a]ny complaints the

fishers may have concerning the state’s representation of their

interests are matters between them and the state.” Jd. at 1133.

As a result of the issuance of the September 27, 1977

injunction, a number of commercial net fishermen were cited

during the 1977 Puget Sound salmon fishery for criminal

contempt. As of the date of this brief. five are presently serving

jail terms of up to 60 days as a result of conviction for criminal

contempt.

LE Ee ee ee

B. The Later Orders

On December 7, 1977, Judge Boldt ordered the State of

Washington not to issue any net salmon fishing licenses for

1978 or subsequent seasons. He set a hearing on the United

States’ motion for an injunction comparable to the one issued in

1977 and directed that any individual or organization wishing

(0 appear at that hearing should file a notice Of appearance and

4 memorandum setting forth any Objections to the proposed

1978 injunction. Pet. 78-139, App. |. Copies of this order and

the proposed injunction were served on a large number of

commercial fishermen.

At the hearing on the Proposed injunction, which was held

April 5, 6 and 24, 1978, several fishermen appeared represented

by counsel and a larger group appeared pro se. Neither

petitioner Puget Sound Gillnetters Association nor petitioner

Purse Seine Vessel Owners Association participated in the

hearing. When counsel for an individual fisherman attempted

to clarify the extent to which the non-treaty commercial fish-

ermen would be authorized to Participate in the hearing, the

court emphasized their non-party status.'7 The testimony that

'7“Mr. Yates: You indicated we can Present testimony. Do we

have the authority to subpoena witnesses?

“The Magistrate: To subpoena persons?

“Mr. Yates: Yes.

“The Magistrate: I would Say no.

“Mr. Yates: O.K.

“The Magistrate: As a nonparty, | would say no

| “Mr. Yates: We do not. Do we have the authority to use

interrogatories, requests for admission, the other discovery devices

contained in the rules?

“The Magistrate: | would again, as 4 nonparty, say no.” JA $4].

Judge Boldt later acknowledged that “[t}he fact that [the

commercial fishermen] are not Parties to this lawsuit has Placed

restrictions on the scope of their Participation.” The court also

acknowledged that the Magistrate before whom the hearing was held

had been powerless to grant the status of party to any non-party. JA

480 (99 11-12).

Was permitted during the hearing was restricted to a determina-

tion of the need for the enforcement mechanisms contained in

the proposed injunction. The court specifically precluded

inquiry (JA 538-41) into the economic impact that would result

from the enforcement of the 50%-plus allocation scheme that

Judge Boldt had adopted in his Original decision.

On June 6, 1978, still another “preliminary injunction” was

entered, dealing with the enforcement of limitations on non-

treaty salmon fisheries for 1978 and subsequent seasons. By the

terms of that order ( Pet. 78-139, at C2 ):

“All gillnet, purse seine and reefnet fishermen licensed

by the State of Washington, all other persons who attempt

tO net Or assist in netting salmon in. . . | Puget Sound J, the

Puget Sound Gillnetters Association, the Purse Seine Ves-

sel Owners Association, . . . and all persons in active

concert or participation with them, are hereby enjoined

and prohibited from taking, attempting to take, or offering

for sale, salmon of any species taken from such waters. or

assisting in any of the foregoing, unless such person has,

within the previous twenty-four hours, ascertained from

the National Marine Fisheries Service telephone ‘hot line’ .

. that such fishing in the area in which the individual

intends to fish is not prohibited by this court at the time of

such fishing... .”

The injunction further subjects the commercial fishermen

to sweeping—and perhaps unprecedented —enforcement pow-

ers conferred on government agents ( Pet. 78-139 at C3):

“4. Personnel of the National Marine Fisheries Ser-

vice, the Coast Guard, the United States Marshal’s Service

and the Washington Department of Fisheries and persons

lawfully deputized by any such agency may board fishing

vessels for the purpose of investigating suspected violations

of this injunction.

“5. At the direction of any enforcement agent. . . all

... [non-treaty fishermen] are hereby ordered to stop their

vessels, permit boarding by enforcement agents, permit

themselves and their vessels to be photographed, permit

their catch to be examined. identify themselves and their

vessels to the satisfaction of the boarding enforcement

agents, and produce either a valid Washington Department

of Fisheries net salmon fishing license or a valid treaty

Indian identification card for the then current fishing

season which, by this order, all fishermen are required to

carry when engaged in any salmon fishing activity de-

scribed .... Any fisherman failing to identify himself as

Provided herein may be placed under arrest...”

(Emphasis added. )

As 4 result of this injunction. more commercial net fish-

ermen have been cited for criminal contempt and are present-

ing awaiting trial on that charge.

This order was appealed to the Ninth Circuit, and is now

before this Court on certiorari before judgment.

SUMMARY OF ARGUMENT

The decision by the federal courts below takes the simple

language of the Stevens treaties and gives it an effect that is not

justified either by its plain meaning or by its historical under-

standing. The treaties assured the Indians the right to fish “in

common with” the newly arriving settlers of the territory.

Nothing in that phrase suggests that there was any expectation

that the harvestable fish would be or could be mathematically

apportioned between the treaty Indians and the rest of the

populace as separate groups. There is certainly nothing in the

text of the treaties that provides a foundation for the decision

by the federal courts to exclude non-treaty fishermen from the

Opportunity to fish at all, in order to guarantee the treaty

Indians a certain Proportion of the harvestable catch.

Moreover, the available historical evidence demonstrates

that the natural meaning of the phrase “in common with” was

the one understood by both parties to the treaties. The Anglo-

American understanding of a “common fishery”’ was that all

Persons are entitled to undivided access to it. The attempt by

the court of appeals to justify a proportionate allocation by

using 4 “co-tenancy” analogy is wide of the mark because that

concept has no application to common fisheries, as the treaty

negouators well knew. Contemporaneous documents manifest

the intent of the parties that, while the Indians’ right to fish at

their usual and accustomed places was to be protected, the right

of other people to fish as well was also to be secured. The

rights guaranteed by the treaties consist of the equal opportu-

nity of each individual fisherman to Pursue that effort, and

those rights are not Properly or fairly apportioned between

treaty Indians as a group and others as a group.

Indeed, the prior decisions of this Court construing the

Stevens treaties confirm that the treaties confer rights of equal

dignity on individuals, Indian and non-Indian alike. As a

result, any apportionment, which necessarily prefers some

individuals over others, flounts the essential! guarantee of the

treaues themselves. Moreover, such disparate treatment viol-

ates the Equal Protection Clause of the Constitution, since there

is no difference between Indian and non-Indian fishermen that

Justihes any favoritism in the regulation of fishing opportunities.

A. The allocation designed by the district court is

unsupportable even without regard to the absence of a founda-

ion for an apportionment in the treaties themselves. The

formula constructed to guarantee the treaty Indians a definite

Proportion of the total harvestable catch does not reflect any

sound exercise of discretion; indeed. the district judge treated

his percentage allocations as a product of legal compulsion, and

he deliberately refused to weigh the economic hardships being

inflicted on thousands of non-treaty fishermen whose liveli-

hoods have been virtually destroyed by his decrees.

Beginning with the assumption that treaty Indians as a

group should be guaranteed half the harvestable catch—even

though Indians make up only a tiny fraction of the commercial

and recreational fishermen in the State—the district judge

compounded the error of his apportionment by conferring still

further premiums on the Indians. The allocated shares are so

disproportionate to the respective numbers of affected fish-

ermen that the district judge’s plan makes a mockery of

elemental notions of equity and the equal Protection of the

laws.

B. The district judge also overstepped his judicial function

by undertaking to enforce these treaties according to his own

design, without the guidance of implementing federal or state

legislation. Treaties are normally not self-executing when their

terms constitute a general commitment that leaves open a wide

range of policy choices and requires extensive administrative

machinery. In deciding to enforce these treaties himself, the

district judge Improperly devised his own elaborate mecha-

nisms that have ultimately come to establish the district judge

as master of the State’s fisheries, with various federal and state

agencies under order to police the detailed and fur-ranging

restrictions he has imposed.

C. Contrary to a basic Principle of federalism, the federal

courts here have sought to order state agencies to take official

enforcement action beyond the scope of the powers the

agencies have been given by the state legislature. The people of

the State of Washington, acting through their elected repre-

sentatives, have decided to authorize state officers to regulate

the State’s fisheries only for the purpose of Promoting con-

servation. The federal courts lack the power to impose upon

the State the obligation to enforce a mathematical allocation of

fish among groups of fishermen solely because the federal

courts have concluded (wrongly, we submit) that treaties allow

certain Indians to harvest a disproportionate share of the

resource.

A. Nop-treaty fishermen like Petiloners were not parties

to the litigatiom it which the United “tates and treaty Indians

joined in an efor to force the State of W’ hington to allocate a

specific share of ee fish to the Indians. ° hespre tras exclusion,

the lower federal courts have rules! ‘we We Mon-treaty fish-

ermen are bound by the rulings ‘“# oye adverse to their

interests because they assertedly sew m= “privity” with the

State. Due process, however, Prevents te courts from holding

that non-parties are bound by the outcome of a litigation unless

one of the parties to that litigation was 4 legally adequate

representative of their interests.

That could not be true here. howe er, since, to the extent

that the State was in “privity” with its «wizens, it was equally in

privity with all of its citizens, including the treaty Indians. Since

under the “privity” theory the State therefore had conflicting

interests imputed to it, it cannot be regarded as the legally

adequate representative of any group or person with distinct

interests. Moreover, throughout the course of the federal and

state court litigations, the State has taken various posiuons that

diverge from the views of the non-treaty fishermen or that

conflict with their interests

B. There can be no privity sufficient to bind a non-party

unless there is a true identuty of interests between party and

non-party, but here the non-treaty fishermen had distinct,

independent interests. Those cases in which a state has been

treated as an adequate representative of its citizens have

involved situations in which all its ciuzens were similarly

situated. In the cases now before the Court, however, various

groups of Washington citizens are arrayed against each other.

It is a pure fiction to pretend that one group of the State’s

ciuzens may fairly be bound by the earlier litigation on the

assumption that the State was representing them.

C. Finally, the federal district judge violated both due

Process and Rule 65 of the Federal Rules of Civil Procedure by

extending his injunctions directly to petitioners. who had not

been parties to the litigation in which the underlying rulings

were made. Petitioners have never had their day in court and

have been repeatedly denied vie opportunity & contest the

premises on which the injunctior> reat. Rule 65 allows a federal

court to apply its orders to non-parties Only when they are

acting in concert with a Party in an attempt to evade the court’s

decrees or are resting On a common legal right. Neither of

those conditions 1s satisfied here, since petitioners and the State

have been acting at arm’s length—and have actually been in

conflict on various aspects of this situation—and the State's

unquestioned power to regulate commercia! fishing does not

make the State’s rights and interests legally identical to those of

commercial fishermen like petitioners.

For all these reasons, the federal orders must be set aside.

ARGUMENT

1. THE TREATIES PROVIDE NO BASIS FOR THE

APPORTIONMENT OF FISH.

A. Apportionment Is Fundamentally At Odds With The

Stevens Treaties Themselves And With The Equal

Protection Of The Law.

The lower federal courts have split the Washington State

fishing industry into two groups—Indians and non-Indians

to which fish are to be apportioned. Because of the population

disparity between the groups, the necessary consequence is that

some individual fishermen have been accorded a dramatic

preference over others. This result is inconsistent with the very

treaties on which the apportionment is said to be based.

The treaties state that “(t]he right of taking fish, at all

usual and accustomed grounds and stations, is further secured

to said Indians, in common with all cilizens of the Territory

--.. It seems obvious that this language was intended to

aaa

accord individual Indians and individual citizens the right to Ind; ~~ | dignity.19 Indeed. the C h

‘ 9 ‘ . yn- an, ‘ ; > ae

fish at the Indians’ accustomed fishing places. As the Court said a 1 SS OF Soe —— — » ae Some _

in United State- vy. Winans, 198 US 371, 381 (1905). the already declared that there is a Principle “of equal protection

language reserves a non-exclusive right to fish “to every implicit in the Phrase bes —— with,” Puyallup /, 391 US.

individual Indian. as though named” in the treaty. Cf at 403. The treaties description of the specific right in

McClanahan vy. Arizona Tax Commission, 411 U.S. 164. 18] questes—ie right to fish “in common compels the con-

(1973). The Court has held on other occasions that this clusion that all individual fishermen must be treated equally. In

language also establishes “rights of the non-Indian citizens of short, the right of “said Indians [to aan | ee wah alt

Washington,” Puyallup Tribe. Inc. y Department of Game of citizens can hardly be turned into a right to exclude citizens

the State of Washington, 433 US. 165, 176 & nlé (1977) from equal fishing Opportunities. To allocate more fish to some

( Puyallup 111), which the courts must strive “to accommodate individuals ay because they _ Indians thus stands the

[with] the rights of Indians . ..” Department of Game of the treaties central assurance of equal individual rights on its head.

State of Washington vy. Puyallup Tribe, 414 U.S. 44, 49 (1973) Only last Term in University of California Regents y.

(Puyallup II). ). See also Puyallup Tribe vy. Department of Bakke, 438 US. ___. og § Ct. 2733 (1978). this Court

Game of the State of Washington, 391 U.S. 392, 398 (1968) underscored that the focus of the Equal Protection Clause of the

( Puyallup I). The decisions below, however, subordinated the Fourteenth Amendment is on the rights of individuals. As Mr

rights of one group of commercial fishermen to the rights of the Justice Powell stated there:

other group at what were declared to be “common” fisheries. 18

The essential point is that the Parties to the Stevens treaties

themselves perceived the rights of all fishermen, Indian and

“The guarantees of the Fourteenth Amendment

extend to persons. Its language is explicit: “No state Shall

. . . deny to any person within its jurisdiction the equal

'® Treaty Indians today effectively enjoy greater freedom to fish Protection of the laws.” It is settled beyond question that

than other citizens. See Tulee v. Washington, 315 US. 68] (1942) the ‘rights created by the first section of the Fourteenth

(immunity from fishing license fees); United States 'v. Winans. supra Amendment are, by its terms. guaranteed to the individual.

(easement to fishing grounds): Wash. Rev. Code §§ 75.28.450 ey seq.

(limitations on commercial fishing licenses; not applicable to treaty

Indians). But this is not inconsistent with the equality of rights under

the treaties. The Indians’ superior freedom to fish today arises merely

because the State of Washington succeeded to the plenary powers of

the federal government over only the non-Indian citizens of the

Territory when the State was admitted to the Union. As Mr. Justice

Douglas explained, “A ‘right’ which the Federal Government grants

They are personal rights’... .” 98S. Ct. at 2748 ( citations

omitted ).

'? Although the district court below blinded itself to this truth. see

384 F. Supp. at 332, the court of appeals so held in clarifying the

equitable adjustment to be made to the 50-50 allocation for fish taken

outside the State’s regulatory jurisdiction. “The treaty,” the court of

an Indian may ‘not be qualified or conditioned by the State,’ ” apart appeals correctly noted, granted equa! rights at the traditional areas

“eae, AP” mgt eot 9 to Washington citizens . . . .” 520 F.2d at 689. See also $73 F.2d at

from “conservation measures. applicable to all . . . .” Antoine vy. 1128 (“[t}he rights of each sovereion are reserved or granted ha

Washington, 420 U.S. 194, 211 (1975) (Douglas. J. concurring ) pe ime hy ned Stanes’ Mee ee eed OF granted in the

; treaties"); Br. for the United States, Nos. 78-} 19 and 78-139, Sept.

(quoting Puyallup I, 391 US. at 399). See generally Organized 1978, at 24 (recognizine th istence of “rich mend te of

Village of Kake v. Egan, 369 U.S. 60 (1962). tizens of the Go ne ine existence of “rights possesse nd

citizens of the State to fish ‘in common with the treaty Indians”).

Inexplicably, the court of appeals failed, however. to give effect to this

fact in approving the district judge’s apportionment plan.

The federal courts below have simply ignored this

fundamental truth. In response to petitioners’ equal protection

challenge to the apportionment program, the court of appeals

specifically ruled that comparisons of the numbers of Indian

and non-Indian fishermen and the quantity of fish that each is

allowed to take is “irrelevant under the law” as a result of the

treaty parties’ alleged co-tenancy. The Indians obtain their

rights and fish under the regulation of one co-tenant, the tribes.

said the court, while the non-Indians derive their rights and fish

under the regulation of another, the State as the successor to the

United States. ‘The population-head-count disparity,” the

court concluded, “is the unremarkable result of normal prin-

ciples of property law applied to changing numbers within

cotenant classes.” 573 F.2d at 1128.

The fictions indulged by the court of appeals do not assist

its analysis because they do not establish a classification that

has any relation, let alone a fair and substantial one, to the

object of apportionment. Indians and non-Indians alike have

the right to fish in common at the Indians’ customary fishing

grounds, and both are subject to state conservation regulation

in the exercise of this right. The sole difference between them is

that the State can regulate the treaty Indians only in the interest

of conservation. But this difference cannot justify disparate

treatment of individual non-Indians through apportionment.

Under the court of appeals’ own co-tenancy rationale the need

for apportionment arises only because of the present scarcity of

the resource and the need for conservation.

In short, since both Indians and non-Indians are subject to

the State’s conservation control, any favoritism in the regulation

of fishing opportunities flouts the guarantees of the Equal

Protection Clause by failing to treat similarly circumstanced

persons alike. As the state courts have concluded, there is no

basis for “an allocation of more than 50 percent of a natural

resource of a state to a group of citizens comprising a little more

than .028 percent of the population .. . .” Washington State

Commercial Passenger Fishing Vessel Association v. Tollefson,

89 Wash. 2d 276, 57] P.2d 1373,1373 (1977).

B. The Rationales Adopted By The Lower Federal

Courts To Justify An Apportionment Are Untenable.

The allocation Program ordered by Judge Boldt and

approved by the court of appeals defies simple common sense.

Under this Program a single treaty Indian fisherman would be

entitled to harvest more fish than all of the State’s other

fishermen combined. Likewise, under the 50-50 entitlement.

the Makahs, whose Customary fishing grounds are at the

entrance to Puget Sound. together with the citizens of the State

would be able to take under the Treaty with the Makah ai// of

the harvestable salmon Passing their Customary grounds, to the

complete exclusion of the other tribes below the Makahs in the

migratory flow.

Moreover, even the dictionary definition relied on by

Judge Boldt to support his decision belies his interpretation,

when the Court considers the portion of the definition that.

curiously, he neglected to quote. JA Ill (FF 24). This

excluded portion of the definition of “common” from a contem-

porary dictionary states: “The right to a highway is common.”20

This usage is Particularly significant since the Yakima treaty

(12 Stat. 915; A-133 Pet. 78-119) specifically refers to the use

of the highway. The Paragraph immediately Preceding the

reference to fishing rights in Article WI in the Yakima treaty

secures for the Yakima Indians. “. __ the right, in common with

citizens of the United States, to travel on all Public highways.”

(Emphasis added.) Under the normal rules of construction.

identical language in the Same instrument should be identically

construed. Applying Judge Boldt’s interpretation of that

phrase, however, would give the Yakima Indians the right to

control half of the highways in the State of Washington and to

exclude non-treaty citizens of the United States from using

them.

It is evident, therefore, that Judge Boldt’s unnatural inter-

pretation of the phrase “in common with” is facially inequitable

20 Webster’s American Dictionary of the English Language,

(1862 ed.). JA 325. | we

and textually unsupportable. It is absurd to suppose that

Governor Stevens or the Indians intended any such results, or

would have intended them if they had anticipated conditions of

scarcity. As the Washington Supreme Court aptly observed:

“(I]t is inconceivable that the Parties to the Treaty con-

templated an allocation of the fish or an advantage of one

over the other in the manner of taking fish. The fish were

there for the taking. It was important only for the Indians

to enjoy the right of taking fish in common with, i.e., on an

equal basis with, the citizens of the territory. This is

exactly what the parties must have intended.” Department

of Game v. Puyallup Tribe, Inc., 86 Wash.2d 664, 548 P.2d

1058, 1067 (1976).

The State in its brief (at 42-63) has convincingly demon-

strated on the basis of the actual historical evidence that the

Parties to the Stevens treaties agreed to establish a common

fishery in which Indians and non-Indians alike would enjoy an

equal opportunity to fish. Contrary to Judge Boldt’s analysis,

the “in common” language of these treaties simply does not

support the conclusion that the Parties meant to divide the

resource itself and to give Indians as a group the right to

exclude others from the Opportunity to fish. This conclusion in

no way denigrates the importance of the treaties for the Indians.

The treaties, after all, secured and guaranteed to them substan-

tial rights that they would not otherwise have had: access to

fishing grounds off their reservations and freedom to fish there

on an equal footing with citizens of the Territory. See

Department of Game v. Puyallup Tribe, Inc., supra, 548 P.2d at

1069-70.21 The Indians, of course, were not citizens at the time

of the treaties and thus had only those rights conferred upon

them in treaty negotiations.

@! Those rights now also allow treaty Indians to fish commercially

without purchasing a license and without limitation as to the number

of commercial fishermen, restrictions that apply to other citizens.

Wash. Rev. Code §§ 75.28.450 ey seq.

The court of appeals’ “co-tenancy” reasoning fares no

better than Judge Boldt’s misreading of the language an.

Purpose of the treaties. As that court conceded on the second

appeal (see 573 F.2d at 1128 n.3) and as Judge Kennedy’s

separate opinion explains (see id at 1134-36), the treaties

hardly established a formal co-tenancy subject to the rights and

incidents of a co-tenancy at common law. Nothing in the

negotiation or language of the treaties indicates that the Parties

intended that those rights and incidents would govern their

relationship. Nor is there any reason to believe that they would

have adopted this model if they had focused on the possibility

There is a more fundamental error in the court of appeals’

approach than its historical inaccuracy. This Court has settled

that, consistently with the Stevens treaties, the State may

regulate fishing by both treaty Indians and non-Indians in the

interest of conservation, provided that the regulation is non-

discriminatory. Puyallup I, 391 US. at 398-99. See also New

York ex rel. Kennedy v. Becker, 24| U.S. 556, 563-64 ( 1916)

The Court has Only sustained an apportionment of fish when

the particular conservation measures adopted actually dis-

criminate against Indians by imposing burdens that fall more

heavily on them than on non-Indians. “There is discrimination

here because all Indian net fishing is barred and only hook-and-

line fishing, enurely preempted by non-Indians. js allowed.”

Puyallup II, 414 US. at 48. The case now before the Court,

however, involves no disproportionate burdens on Indians.

Quite the contrary is true.

Under this Court’s decisions, the State is charged with

authority to regulate intra-state fishing in the interest of con-

servation, as long as it does not discriminate. Under the court

of appeals’ reasoning, however, the federal courts are required,

upon application by treaty Indians, to “partition” the taking of

all fish. In effect, the court’s co-tenancy rationale takes what

this Court adopted as a limited, judicial remedial measure for

specific instances of discrimination and extends it to govern the

full scope of all fishing activities in the State. The co-tenancy

analogy thus misallocates to the federal judiciary the regulatory

authority that properly belongs to the State.22

* * *

The federal courts below have shut their eyes to what the

text of the Stevens treaties, the history of their negotiation,

constituuonal considerations, and simple common sense all

show. If they have done so in an effort to remedy some

perceived injustice to the Indians, they have exceeded the

limited role assigned to the judiciary. ““We attempt,” this Court

has affirmed, “to determine what the parties meant by the

treaty. We stop short of varying its terms to meet alleged

injustices. Such generosity, if any may be called for in the

relations between the United States and the Indians, is for the

Congress.” Northwestern Bands of Shoshone Indians vy. United

States, 324 U.S. 335, 353 (1945) (footnote omitted). “| E}ven

Indian treaties cannot be rewritten or expanded beyond their

clear terms to remedy a claimed injustice... .”” Choctaw Nation

of Indians vy. United States, 318 U.S. 423, 432 (1943).

This must be especially so here, where any apportionment

program infringes on the right of others “to hold specific private

2 Compare Arizona vy. California, 373 U.S. 546, 597 (1963),

where this Court held that the doctrine of equitable apportionment as

a method of resolving water disputes between states did not apply to

disputes between a state and an Indian reservation, in part because

those disputes were to be decided according to federal legislation and

Execuuve Order and not judicial discretion.

employment and to follow a chosen profession free from

unreasonable governmental interference . . . .” Greene v.

McElroy, 360 U.S. 474, 492 (1959).

Il. THE DISTRICT COURT’S PLANS FOR ADMINIS.

TERING THE STATE’S FISHERIES EXCEEDED ITS

CONSTITUTIONAL AND EQUITABLE POWERS.

The foregoing analysis shows why the predicate for any

apportionment in this case is illusory. Even if there were some

basis in the treaties for declaring that Indian fishermen are

entitled to more than an equal opportunity to fish, the orders

entered by Judge Boldt, and sustained by the court of appeals

with varying degrees of enthusiasm or hesitance, cannot be

justified.

A. Even If An Apportionment Of Fish Were Permissible.

The Particular Apportionment Adopted Below Cannot

Be Sustained.

The apportionment formula that Judge Boldt imposed on

the state fishing industry requires a complicated series of

manipulations to determine the amount of fish that the Indians

and the non-Indians may each harvest. See pp. 6-16, supra.

Only one premise reconciles these various manipulations:

“heads-the-Indians-win, and tails-the-non-Indians-lose.”

1. The 50-50 Split. The basic 50% allocation chosen by

the courts below is both unprincipled and inequitable.

“Sharing equally the opportunity to take fish,” which is what

Judge Boldt held the treaties to require, surely does not

translate into an even split of the fish. As any fisherman knows.

the size of each catch depends upon individual effort, skill. and

luck, even where there is the same opportunity to fish. What

the courts below have done is to guarantee a disproportionate

rate of success for certain Indian fishermen.

As Judge Kennedy's opinion below demonstrates, the court

of appeals’ “co-tenancy” also is an inappropriate guide to

“determine what share of the disputed rights should be allo-

cated to each of the parties.” 573 F.2d at 1135 (concurring

Opinion). The factors relied on by the court of appeals in

upholding a 50-50 split on the first appeal fail, too, to furnish

any principled ground for decision. The court sustained this

split in part because of “the equality between the two bargain-

ing parties.” 520 F.2d at 688. Yet the formal equality between

the United States and each “tribe” hardly provides any assur-

ance that the parties would have settled on a 50-50 division if

they had agreed to an apportionment at treaty times. Even if,

contrary to the historical record, the parties had settled on an

apportionment, it seems far more likely that they would have

agreed to divide the fish according to the ratio of their

respective fishermen or general populations at any given time.

There is not a shred of evidence to Suggest that, if this issue had

been addressed, the United States would have conceded an

allocation of at least half the harvestable fish, coupled with a

power to exclude non-Indian fishermen.23

The court of appeals concluded that the Indians’ view of

fishing rights as communal Property also supports an even

allocation. As an_ historical Proposition, the court’s view

conflicts with the expert anthropological evidence in the record

that “[{w]hat an individual [Indian] caught and dried was his

own.” JA 259. It also ignores this Court's holding in Winans

that the Indians’ treaty fishing rights are personal rights. 198

U.S. at 381. Even more importantly, it blinks at the fact that

“[t}he individual [Indian] fishermen [today] keep the pro-

ceeds of their fish sales, and this money is not shared with the

tribe.” Department of Game v. Puyallup Tribe, Inc., 86 Wash.2d

664, 548 P.2d 1058, 1079 (1976) (concurring opinion). See

also JA 538-41.

Finally, Judge Boldt’s own overall 45-55 apporuonment

for 1977 concretely dramatizes that there is nothing in the

treaties to support an even division. Indeed, in sustaining that

| *3 Significantly, the “tribes” with which the United States entered

into treaties were artificially created out of smaller bands and did not

even exist before negotiations were begun. JA 108 (FF 17-18).

a en

allocation, the court of appeals candidly stated that “[t}he

numbers question is one of degree, not one of principle.”” 573

F.2d at 1130 (emphasis added). See also 520 F.2d at 688

(“| t]he district court was not required to decree a perfect 50-50

division of fishing opportunity”). The appellate court's holding

on both appeals that Judge Boldt could exercise “a great

amount of discretion” in fashioning and managing the “details”

of the apportionment, 520 F.2d at 687: see also $73 F.2d at

1129, of course, concedes that no allocation ratio can be

extracted from the treaties themselves.

With the unfounded reasoning of the lower courts cleared

away, the inequity of the 50-50 apportionment is evident from

the astounding disparity between the catch allowed individual

fishermen. However the comparison is made—whether by the

ratio of general populations, total fishermen. or merely com-

mercial fisherman—treaty Indians are entitled under the

apportionment to a disproportionate share of the State’s re-

source. Indeed, according to the figures appearing in the

district court’s decision, 794 treaty Indians who engage in

fishing are entitled under this apportionment to at least as many

fish as approximately 6,600 commercial and 283.650 recrea-

tonal .on-treaty fishermen combined.24

2. The Fish Subject to Apportionment. Judge Boldt’s

allocation formula calls for the Indians to take 50% of the

salmon that, absent harvest en route, would be available for

harvest at the Indians’ customary fishing grounds. The formula

thus effectively reduces the freedom of non-Indians to fish in

waters that the Indians did not frequent at treaty umes. The

State in its brief has cogently explained that this misconceives

the right reserved to the Indians in the Stevens treaties by

4 This degree of disparity may also jeopardize the resource itself.

Since both over- and under-harvest of anadromous fish may endanger

the run, it is desirable that all fish be taken that are not necessary for

opumum escapement. See JA at 162-63 (FF 171). This. however,

will not occur if Indians are allocated so much that they are unable to

harvest their share or if non-Indians are provided so little that their

incentive and ability to fish at all disappear.

ignoring the treaties’ geographical limitation of off-the-

reservation fishing rights to the Indians’ “usual and accustomed

grounds and stations” and by treating the right to engage in

fishing as a right to the fish themselves. 25

But even if Judge Boldt’s approach were correct. con-

sistency would require that fish taken on the reservation that

would otherwise migrate through a common fishery at the

Indians* customary sites be included in the total to be appor-

toned. Consistency would also require that fish landed by

Indians in the all-citizen fisheries before running through the

common fishery be counted toward their share. Yet under

Judge Boldt’s formula no fish taken by the Indians on the

reservation are subject to apportionment, and no fish caught by

treaty Indians outside the common fishery are counted in

calculating their “50%” entitlement.

3. Fish Taken on the Reservation. Both courts below held

that the apportionment did not extend to any fish taken on the

reservation because the Indians’ right to fish there is exclusive.

This Court settled in Puyallup I/I, however, that exclusive

geographical fishing rights do not afford the Indians freedom to

fish on the reservation without regard to the treaty rights of

others. The Court stated emphatically that the Indians do not

enjoy “untrammeled on-reservation fishing rights” and are not

free to “interdict completely the migrating fish run”: otherwise.

the Indians could “totally frustrate . . . the rights of the non-

Indian citizens of Washington recognized in the Treaty of

Medicine Creek.” 433 U.S. at 176 (footnote omitted). Once

again, therefore, the apportionment decreed below impermis-

*6"(T)he Indians’ reserved right, like all nights of fishery

recognized in the common law, is defined by and attached to real

Property — their ‘usual and accustomed grounds and stations.’ By its

nature, the right does not consist of an interest in the fish themselves

that would enutle the Indians to restrain the lawful exercise of fishing

rights by nontreaty citizens at the same locations. A fortiori the right

reserved does not establish any cognizable interest in the fish or lawful

fishing activities outside the boundaries of the ‘usual and accustomed

grounds.’ ” Br. of Petitioner State of Washington at 53.

ot We Sl

sibly stacks the deck. Not surprisingly, the record demonstrates

that the exclusion only serves to encourage the Indians to

concentrate their fishing activities on the reservation so as to

increase their over-all share of the harvest. See JA 234-35, 253-

54,

Although Indians today are entitled to fish wherever others

are, they had no such right when the treaties were negouated.

The Indians reserved the right under the treaties only to fish on

the reservation or at their accustomed grounds; elsewhere the

fishing rights of citizens were exclusive.2€ As a result, there is a

plain lack of equity in now establishing a system of apportion-

ment that allows the Indians to take fish on the reservation free

from apportionment on the basis of exclusive fishing rights,

while at the same time charging against the apportionment for

other fishermen (a) the fish that they harvest in waters that the

Indians did not frequent at treaty times, and (b) fish taken by

non-Indians outside the State's regulatory jurisdiction.

4. Fish Taken for Subsistence or Ceremonial Purposes.

Judge Boldt also exempted from apportionment fish taken by

the treaty Indians for subsistence or ceremonial purposes.

Although these uses may have been and may remain important

to the Indians, the Stevens treaties reserve no special rights to

the Indians for these purposes. Subsistence fishing may be no

less significant for n.any non-Indians, but there is no special

treatment for them.

5. Hatchery-Reared Fish. Judge Boldt has effectively

required that the apportionment extend to fish artificially

propagated at the State’s expense. Yet it seems obvious that

the Stevens treaties do not obligate the State in planting fish to

subsidize Indian any more than non-Indian fishermen, which is

precisely the effect of Judge Boldt’s orders. As the state courts

reasoned on the remand of Puyallup IJ, the absence of any

26 The treaties predate the adoption of the Fourteenth Amend-

ment, and the Fifth Amendment's due process clause was not held to

incorporate equal protection principles until Bolling v. Sharpe, 347

U.S. 497 (1954).

aruficial anadromous fish propagation at treaty times makes it

“inconceivable that either the tribe or the government intended

the Treaty to create any rights beyond the natural run.”

Department of Game vy. Puyallup Tribe, Inc., supra, 548 P.2d at

1071.27 In short, there is nothing in the treaties that can give

Indians any greater claim than non-Indians to hatchery-reared

fish paid for by the State.28

6. Failure to Exercise Sound Discretion. We have shown

that a discretionary apportionment Program fundamentally

misconceives the Stevens treaties and the proper role of the

judiciary in enforcing treaty fishing rights. We have also shown

that the allocation formula ordered by Judge Boldt here is

incorrect, internally inconsistent, and biased. But even if all of

this were not so, the district judge’s program still could not be

sustained.

The court of appeals ruled that “[t)he district court has a

great amount of discretion .. . in. . . devising the details of an

apporuonment... .” 520 F.2d at 687. It obviously follows

from this premise that the trial court should actual’’ have

exercised discretion in adopting its allocation formula; the court

should have weighed all relevant factors. disregarded any

irrelevant considerations, and then struck an equitable balance.

As Mr. Justice Douglas has stated:

“The essence of equity jurisdiction has been the power of

the Chancellor to do equity and to mould each decree to

27 Significantly, all but one of the Stevens treaties adopt this line

of demarcation by expressly prohibiting the Indians from taking

“shellfish from any beds staked or cultivated by citizens.” Jd. See Pet.

78-119, at Al31-34. The exception is the Treaty with the Yakimas.

who occupied territory where shellfish were not found.

*6 The provisions discussed in the text are not the only offensive

features of Judge Boldt’s apportionment program. Among other

things, his 1977 and 1978 orders seek to effectuate the apportionment

through the regulation only of non-Indian commercial net fishing.

Despite the fact that the law requires “equality of burdens upon those

in like situation or condition,” South Carolina ex rel. Phoenix Mutual

Life Insurance Co. v. McMaster, 237 US. 63, 72-73 (1915), the

State’s recreational fishermen are not required to contribute to the

Indian share in any way.

oer

the necessities of the particular case.... The qualities of

mercy and practicality have made equity the instrument for

nice adjustment and reconciliation between the public

interest and private needs as well as between competing

private claims.” Hecht Co. v. Bowles, 321 US. 321, 329-30

(1944).

Yet one searches Judge Boldt’s pronouncements in vain for

any intelligible weighing of the equities at any time in the

course of his management of the apportionment program. The

Judge originally decided upon a 50-50 split as a matter of treaty

interpretation and not the exercise of any discretion at all. 384

F. Supp. at 343. Even when he deviated from this conclusion in

1977, he acted only on the basis of unexplained “facts, circum-

stances, and equities.” Pet. No. 77-119, at A44. Judge Boldt’s

June 6, 1978, decision reverting to the 50-50 division for 1978

and subsequent seasons is similarly bereft of any explanation of

the allocation now in effect. See JA 479-9].

Even the court of appeals has conceded that there are

“equities that lie on the side” of the non-treaty fishermen in this

case. 573 F.2d at 1130. Yet Judge Boldt has totally ignored the

great disparities in individual treatment and the economic

hardships caused by his orders. Indeed. despite the fact that

the Gillnetters and the Purse Seiners were not Parties to the

proceedings that culminated in the 1974 decree. he expressly

ruled in issuing the June 6, 1978 “preliminary injunction” that

since “[t]}he rights of the treaty and non-treaty fishermen have

already been adjudicated, . . . ecsnomic disruption associated

with implementing the 1974 decree is not legally cognizable.”

JA 483 (94) (emphasis added ).

The decisions of the two lower courts have been two ships

Passing in the night. Judge Boldt has founded an elaborate

apportionment program affecting the vital interests of numerous

fishermen on a conclusion of law concerning treaty inter-

pretation that even two judges of the Ninth Circuit panel below

doubt is supportable. The court of appeals, on the other hand.

has affirmed this action as an exercise of discretion when

neither in form nor in substance has equitable discretion been

exercised. Thus, even on its own theory of the case, the court of

appeals’ affirmance cannot be sustained.

B. The District Court Lacked The Power To Enforce

The Treaties By Imposing Detailed Allocations In

The Absence Of Implementing Legislation By The

Federal Government Or By The State Of Washing-

ton.

The district court also overstepped its legitimate function

by undertaking to implement the general language of the

treaties by supplying its own detailed and comprehensive

instructions for the conduct of fishing in the State of Washing-

ton. By a series of orders, the district court has Pyramided its

own notions about how treaty Indians and non-treaty Indians

should be allowed to fish “in common with” each other and has

wound up acting as a super-legislature without any guidance

from either Congress or the legislature of the State of Washing-

ton. It is impossible to view the Stevens treaties as sufficiently

self-executing to provide authority for the district court’s elabo-

rate plans and decrees, and the court’s extravagant enterprise

surely exceeds any proper role for the federal courts in enfor-

cing treaties.

We are aware of no case in which any federal court has

undertaken to make so many detailed affirmative judgments

about how a treaty should be impiemented. Properly, those

decisions are left to the executive and legislative authorities,

with the judicial role confined to a determination whether the

governmental action (or private conduct) violates some specific

provision of the treaty. See, e.g., Puyallup I, 11, and II.

The role of the courts in enforcing treaties has long been

regarded as a relatively modest one, because treaties—unlike

statutes—are often not self-executing at all. See Foster v.

Nielson, 27 U.S. (2 Pet.) 253, 314 (1829). Normally, as Chief

Justice Marshall explained there. a “treaty addresses itself to

the political, not the judicial department; and the legislature

must execute the contract before it can become a rule for the

court.” /d. These principles apply in equal measure to treaties

with Indian tribes. Cf. Cherokee Nation v. Georgia, 30 US. (§

Pet.) 1 (1831); National Indian Youth Council v. Bruce, 485

F.2d 97 (10th Cir. 1973), cert. denied, 417 US. 920 (1974).

See generally F. Cohen, Handbook of Federal Indian Law 34

(1942).

Ordinarily, the performance of the commitments made in a

treaty is a “political question” beyond the jurisdiction of the

federal courts either to review or to enforce.29 For these

reasons, there is a virtual presumption that, in the absence of

implementing legislation, the federal courts have no authority

to determine how a treaty should be carried out. As the Court

of Appeals for the Second Circuit recently explained in Dreyfus

v. Von Finck, 534 F.2d 24, 29-30 (2d Cir.), cert. denied, 492

U.S. 835 (1976):

“|The treaty] may also contain provisions which confer

rights upon one of the contracting parties which are

capable of enforcement as are any other private rights

under the law... . In general, however, this is not so.

“It is only when a treaty is self-executing, when it

prescribes rules by which private rights may be deter-

mined, that it may be relied upon for the enforcement of

such rights... . Indeed even where a treaty is self-

executing, Federal jurisdiction under [28 U.S.C .| Section

1331 will not lie where it is not provided for in the treaty.”

(Citations omitted. )

29 See, e.g., Oetjen v. Central Leather Co., 246 US. 297. 3?

(1918); Chae Chan Ping vy. United States, 130 US. S81, 602 (1889)

( Chinese Exclusion Case ): Dreyfus v. Von Finck, 534 F.2d 24,29 (2d

Cir.), cert. denied, 429 US. 835 (1976 ); National Indian Youth

Council vy. Bruce, supra, 485 F.2d at 99.

See also Schlesinger v. Reservist Committee to Stop the War, 418

U.S. 208 (1974); Baker v. Carr, 369 US. 186 (1962); Jensen v.

National Marine Fisheries Services, 512 F.2d 1189 (9th Cir. 1975);

Robertson v. General Electric Co., 32 F.2d 495 (4th Cir. ), cert. denied.

280 U.S. 571 (1929).

Treaties may, of course, create justiciable rights. Specific-

ally, if the treaty provisions are self-executing, or if a non-self-

executing treaty has been executed by implementing legislation,

a federal court may enforce it as it would any other statute.

Z&F Assets Realization C orp. Vv. Hall, 114 F.2d 464 (D.C. Cir.

1940), aff'd, 311 U.S. 470 (1941); People of Saipan vy. United

States Department of Interior, 502 F.2d 90, 97-98 (9th Cir.

1974), cert. denied, 420 US. 1003 (1975). To be self-

executing, however, the treaty must be clear, definite and

mandatory in terms of the rights to be enforced, rather than

provide merely general policy language.30 In People of Saipan,

supra, 502 F.2d at 97, the Ninth Circuit set forth some of the

considerations involved in determining whether a treaty provi-

sion is self-executing:

“The extent to which an international agreement estab-

lishes affirmative and judicially enforceable obligations

without implementing legislation must be determined in

each case by reference to many contextual factors: the

purposes of the treaty and the objectives of its creators, the

existence of domestic procedures and institutions appropri-

ate for direct implementation, the availability and feasibi-

lity of alternative enforcement methods, and the imme-

diate and long-range social consequences of self or non-self

execution. . .” ( Citations omitted. )

Applying these guidelines to the Stevens treaties, the courts

below should have concluded that it was not their proper

function to develop a comprehensive scheme to implement the

“common” fishing rights of treaty Indians and non-treaty

fishermen. Congress has not Passed any implementing legisla-

tion On this subject that Provides a basis for an apportionment

307, Restatement (Second), Foreign Relations Law of the

United States § 141 ( 1965): “(1) A treaty made on behalf of the

United States . . . that manifests an intention that it shall become

effective as domestic law of the United States at the time it becomes

binding on the United States (a) is self executing... .”

of fish or that justifies federal judicial control over state

fisheries. Nor has the State of Washington. While state

authorities have developed mechanisms that generally regulate

fishing in the State’s waters and have embarked on various

conservation measures, they have not undertaken to go beyond

that non-discriminatory objective. Inaeed, the Washington

State Department of Fisheries lacks the Statutory authority to

promulgate regulations to allocate fish to specific fishermen or

groups of fishermen for non-conservation Purposes. E.g., Puget

Sound Gillnetters Association vy. Moos. 88 Wash.2d 677, 565

P.2d 1151 (1977).

In the absence of action by either Congress or the

Washington legislature, it was not up to the district court to

decide how to structure the complex economic, political, social.

and cultural interests affected by the Stevens treaties.

The federal district court is not an appropriate institution

to supervise fisheries management. As recognized in People of

Saipan, supra, implementation of a treaty on a subject that

depends on a large number of policy choices and requires a

high degree of technical expertise and administrative super-

vision is not the proper function of a federal district court, at

least in the absence of clear language in the treaty or

implementing legislation assigning that unusual role to the

court. A reading of the State’s description of the intricacies of

administering these major fisheries (Br. at 19-28) vividly

illustrates why Judge Boldt was unwarranted in charting the

course that he has pursued.

The history of Judge Boldt’s involvement in this case surely

demonstrates that enforcement of the Stevens treaties requires

the making of basic policy choices. Most fundamentally, Judge

Boldt has decided that the treaties are self-executing. Acting on

that premise, he concluded that the treaties confer on the

signatory tribes the right to an equal division of the resources,

and he constructed the 50%-plus allocation accordingly. He

also concluded that the individual members of those tribes have

judicially enforceable rights under the treaties.3"

Despite these decisions about the self-executing effect of

the treaties, the district judge has also decided that the other

fishermen, both collectively and individually, can be denied

their right under the treaties to fish “in common with” the

treaty Indians. This is the plain result of his decision to close off

commercial fishing by non-treaty net fishermen on all but a few

days of the year, while allowing the treaty Indians to fish

virtually at will. The results of that “judicial” election have

been predictably disasterous. 32

31 The United States itself, however, has asserted in a related

litigation pending in the Ninth Circuit that fishing treaties do not

necessarily confer judicially enforceable rights on fishermen. In Purse

Seine Vessel Owners Ass'n, et al. vy. United States Department of

State, et al. (9th Cir. No. C77-471M ). the United States has stated on

page 28 of its brief:

“The nonjusticeable nature of plaintiff's suit is not affected by

their claim to protection of their rights under the convention with

Canada. In the first place, the convention does not guarantee any

rights to U.S. fishermen as individuals, it merely authorizes U.S.

fishermen as a whole to take up to fifty percent of the fishermen as

individuals, it merely authorizes U.S. fishermen as a whole to take up

to fifty percent of the harvestable catch. Certainly, plaintiffs do not

possess anything approaching the level of constitutionally protected

property rights.”

32 As simply one illustration of the chaos resulting from Judge

Boldt’s displacement of the State as sole manager of the State’s

salmon resource, we call the Court’s attention to one of the con-

sequences of the Judge’s decision to allow the treaty Indians to be

essentially self-regulating.

In his separate opinion in Organized Village of Kake v. Egan, 369

U.S. 60, 76 (1962), Justice Douglas described at length why “fish

traps’’—which the Court there upheld the authority of the State of

Alaska to prohibit Indians from using—are a “nefarious” device

whose “notorious” destructiveness can have a “devastating effect” on

a State’s economy. 369 U.S. at 77-79. In this light, it is easy to

understand why the State of Washington has banned the use of fish

traps. Wash. Rev. Code § 75.12.060.

Judge Boldt’s involvement has also embroiled him in an

exceptionally high volume of administrative activity, and he has

resorted to unorthodox innovations in order to formulate and

execute his notions of the proper assignment of the benefits and

burdens. Just to list a few of the questionable mechanisms he

has employed, we note that:

He has seen fit to designate himself as, in effect, the

State Fisheries Commissioner.

He has appointed his own Fishery Advisory Board.

He has inaugurated a special telephone “hot line”

with recorded messages informing non-treaty fishermen

whether they are eligible to fish.

He has decided to extend treaty privileges to Indians

not covered by the treaties so long as they have a certain

“blood quantum” or are “invited” to fish by treaty Indians.

He has enlisted an array of federal administrative and

law enforcement agencies into the execution of his con-

stantly evolving master plan.

de has ordered enforcement officials to board fishing

vessels to investigate “suspected” violations of his decrees.

He has required fishermen to allow themselves to be

photographed by the boarding officials and decreed the

arrest of any fisherman who declines to exhibit a special

identity card that the Judge requires all fishermen to carry.

It is difficult to imagine a federal court straying more

boldly from its properly limited role under the general language

of a treaty. By contrast, for example, in United States vy.

Now that Judge Boldt has exempted treaty tribes from the

regulations of the State of Washington and allowed them to be self-

regulated, fish traps are being operated on Puget Sound. Cf Tr.

April 6, 1978, at 299. The court’s allowance of these destructive

devices compounds the economic hardship inflicted on the non-treaty

commercial fishermen and directly undermines an important and

legitimate state policy.

Winans, 198 U.S. 371 (1905), the Court held simply that an

individual Indian was entitled to the “right of taking fish at all

usual and accustomed grounds and stations.” That right “is

secured” expressly in the treaties, and interference with it can

be easily declared and directly enjoined. The judicial enforce-

ment of access to usual grounds poses no particular difficulty.

Here, however, the district court has established a com-

prehensive and seemingly perpetual fishery management plan

on the basis of vague, general language in a compact over a

century old. This endeavor has brought him into a series of

direct clashes over political questions that the judiciary should

avoid.

We respectfully submit that in pursuing his cause, Judge

Boldt has crossed the line that separates judicial decisions from

legislative choices and, indeed, has contravened the only

explicit congressional policy judgment in this area. Frustrated

by the failure of the State of Washington to enact fishing

regulations that he deems appropriate, Judge Boldt has taken

over the management of the salmon fishery. This was not done

in compliance with specific legislative guidelines promulgated

either by the State or by Congress, and in fact runs counter to

the judgment made by Congress in the Fishery Conservation

and Management Act of 1976, 16 U.S.C. §§ 1801 ef seg., which

expressly\reserves to the states their traditional right to control

fisheries within their boundaries. That congressional judgment

explicitly applies to fishing for anadromous fish like salmon that

pass into and out of federal jurisdiction. See 16 U.S.C. §

1856(a).98

This Court has consistently recognized the const-iutional

restricuons upon the powers of the federal courts to usurp what

33 This Act reinforces this Court’s rejection of prior efforts by the

federal government to regulate state fisheries. See, e.g., New York ex

rel. Kennedy v. Becker, 241 U.S. 556, 563 (1916); Organized Village of

Kake v. Egan, 369 U.S. 60, 64 (1962). The prior decisions of this

Court construing the Stevens treaties, including Puyallup I, 11, 111,

have settled that it is the basic right of the State of Washington to

manage its fisheries.

are essentially legislative responsibilities.44 The Court has, for

example, refused “to propose regulatory schemes for the

States,” even where constitutional rights are involved, because

the proper judicial function is “to await their concrete legisla-

tive efforts.” Miller v. California, 413 U.S. 15, 25 (1973).

Judge Boldt’s master plan and its implementing orders con-

stitute just such a regulatory scheme, superimposing duties on

state officials unauthorized by the state legislature and preempt-

ing state authority where Congress has decided to preserve it.

The federal judiciary has no power to create a program of

regulation to be implemented by a state or federal agency in

this way.

There are no prior instances in which federal judges have

arrogated such powers under Indian treaties, but in other

contexts this Court has been prompt and firm in warning district

judges to avoid entanglements that turn on non-constitutional

policy judgments or require excessive administrative innovation

and supervision. Instead, the lower courts have been told to

recognize the primary responsibilities of legislative and admin-

istrative authorities.55 The district judge here erred in making

his own choices.

“C. A Federal District Court May Not Mandate That

State Officials Act Affirmatively In Excess Of Their

Authority Under State Law.

Framed with special clarity in No. 77-983, the case coming

from the Supreme Court of Washington, but implicit in the

federal cases too, is the question whether the federal court could

34 E.g.. Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 690

(1968) (it is not the province of the Court to draft legislation ); Collins

v. Hardyman, 341 U.S. 651, 663 (1951) (it is not for the Court to

compete with Congress or attempt to replace it); Doe ex dem. Poor v.

Considine, 73 U.S. (6 Wall.) 458, 480 (1868) (“Our function ts to

execute the law, not to make it’).

35 See, e.g., Dayton Board of Education v. Brinkman, 433 US.

406, 410 (1977): Connor v. Finch, 431 U.S. 407, 414-15 (1977);

Milliken v. Bradley, 418 U.S. 717, 741-44 (1974); Swann vy. Charlotte-

Mecklenburg Board of Education, 402 US. 1, 16 (1971); Burns v.

Richardson, 384 U.S. 73, 84-85 (1966).

lawfully direct state agents to implement the treaty by per-

forming official functions that they lacked authority to perform

under state law.

Judge Boldt has ordered officials of the Department of

Fisheries, a statutory agency of the State of Washington, to

promulgate and enforce regulations for the purpose of allocat-

ing the harvest of fish in Puget Sound between treaty Indian

fishermen and non-treaty fishermen in accordance with that

court’s interpretation of various treaties.96 The Supreme Court

of the State of Washington, however, has held unequivocally

that, as it interprets various Washington statutes,37 the Depart-

ment of Fisheries has the power to regulate the taking of fish

only for the purpose of conservation. The state court further

explicitly declared that officials of that Department have not

been vested by state law with the authority to allocate the

harvest of fish in order to facilitate a federal court’s inter-

pretation of an Indian treaty.%8

This definitive interpretation of state law by the Washing-

ton Supreme Court is, of course, binding on the federal courts.

See Mullaney v. Wilbur, 421 U.S. 684, 690-91 (1975); Garner

v. Louisiana, 368 U.S. 157, 166 (1961).99 The state court

decisions represent a clear limitation on the power granted by

36 United States v. Washington, 384 F. Supp. 312 (W.D. Wash.

1974), aff'd, 520 F.2d 676 ( 9th Cir. 1975), cert. denied, 423 U.S. 1086

(1976); United States v. Washington, 573 F.2d 1123 (9th Cir. 1978)

| Nos. 78-119 and 78-139 before this Court].

37 See Wash. Rev. Code §§ 75.08.012, 75.12.010, 75.08.080.

38 See Washington State Commercial Passenger Fishing Vessel

Ass'n v. Tollefson, 89 Wash.2d 276, 571 P.2d 1373 (1977) [No. 77-

983 before this Court]; Purse Seine Vessel Owners Ass’n v. Moos, 88

Wash.2d 799, 567 P.2d 205 (1977); Puget Sound Gillnetters Ass’n v.

Moos, 88 Wash.2d 677, 565 P.2d 1151 (1977) [No. 77-983 before

this Court]. See also Hartman v. State Game Comm’n, 85 Wash.2d

176, 532 P.2d 614 (1975).

39 See also Minnesota v. National Tea Co., 309 U.S. 551 (1940);

Fox Film Corp. vy. Muller, 296 U.S. 207 (1935); Board of Supervisors

of Carroll County vy. United States ex rel. Reynolds, 85 U.S. (18 Wall.)

71, 81-92 (1873).

the State of Washington to officials of the Department of

Fisheries. This Court is therefore faced with a stark con-

frontation between the authority of the federal court to issue

mandatory injunctions to state officials, and the power of the

State of Washington to limit the activities and authority of its

officials.

Conflicts between federal and state authority such as that

presented here require an examination of the very foundations

of our federal system. It is a truism that a delicate balancing of

interests is often required to ascertain the proper relationship

between federal and state power. Indeed, this Court has

recently demonstrated its sensitivity to encroachments on legiti-

mate state sovereignty by the federal government, both in the

case of congressional action,4° and in the case of judicial

decrees.41 When the federal government seeks to impose

affirmative mandates on the governments of the states, an even

greater “awareness of the delicacy, and the difficulties of

enforcement” of such mandates is required. See Hart, The

Relations Between State and Federal Law, 54 Colum. L. Rev.

489, 515 (1954). See also Stefanelli v. Minard, 342 U.S. 117.

120 (1951). It is, of course, essential that there be such a

“sensitivity to the legitimate interests of both State and Nation-

al Governments.” Younger v. Harris, 401 U.S. 37, 44 (1971).

The maintenance of a “proper respect for state functions”

assures that the “National Government, anxious though it may

be to vindicate and protect federal rights and federal interests,

{ will] always endeavor to do so in ways that will not unduly

interfere with the legitimate activities of the States.” Jd.

The federal courts below, however, have failed to accord

“proper respect” to what is clearly a state function—the

delineation of the authority of state officials. By enjoining those

40 See National League of Cities v. Usery, 426 U.S. 833 (1976):

Oregon v. Mitchell, 400 U.S. 112 (1970).

41 See Rizzo v. Goode, 423 U.S. 362 (1976). See also Juidice

Vail, 430 U.S. 327 (1977); Hicks v. Miranda, 422 U.S. 332 (1975

Huffman v. Pursue, Lid., 420 U.S. 592 (1975); Steffel vy. Thompson,

415 U.S. 452 (1974); Younger v. Harris, 401 U.S. 37 (1971).

Officials to act in excess of their legitimate authority, Judge

Boldt has acted in a manner inconsistent with the most basic

principles of federalism. The courts have consistently recog-

nized the principle that state or local officials cannot be required

to exceed their authority under state law. See, e.g., Bell v.

School Board of Powhatan County, 321 F.2d 494, 499 ( 4th Cir.

1963); Thaxton vy. Vaughan, 321 F.2d 474, 477 ( 4th Cir. 1963);

Wright v. County School Board, 309 F. Supp. 671, 677 (E.D.

Va. 1970), rev'd other grounds, 442 F.2d 570 (4th Cir. 1971),

rev'd, 407 U.S. 451 (1972): Bradley v. School Board, §5\ F.R.D.

139, 142 (E.D. Va. 1970). Indeed, this Court has specifically

held that mandamus does not lie to compel state officers to

perform an official act that they are not authorized to perform

by the laws of the state from which they derive their power.

See Missouri ex rel. Laclede Gaslight Co. vy. Murphy, 170 U.S.

78 (1898); United States ex rel. Johnston vy. County Court of

Clark County, 95 U.S. (5 Otto.) 769 (1878): Board of Super-

visors of Carroll County v. United States ex rel. Reynolds, supra.

While federal courts may issue prohibitory injunctions

against state officials to prevent them from interfering with

federal nghts, see Ex Parte Young, 209 U.S. 123 (1908), a

federal court must be more circumspect in attempting to order a

State Official to act affirmatively. As one of the leading

authorities on our federal system has noted:

“Judicial mandates to non-judicial state officers to

enforce either primary or remedial duties requiring the

performance of affirmative acts are relatively infrequent.

Lower federal courts may prohibit state officers, in their

individual capacity, from taking action under color of

office in violation of law. But an action to compel the

performance of an affirmat’ve act would encounter, ordina-

rily, the bar of the Eleventh Amendment.’’42

While mandatory injunctions do sometimes issue against state

officials, most notably in desegregation cases, they do not

42 Hart, supra, 54 Colum. L. Rev. at 516 (emphasis in original:

footnote omitted ).

purport to confer additional powers beyond those official

responsibilities entrusted to them by the state.

In Griffin v. County School Board of Prince Edward County,

377 US. 218 (1964), for example, this Court held that a

federal district court had the power to order school officials,

who had closed the public school system in order to avoid

implementing a desegregation order, to reopen the system. The

Court held that the district court was authorized, “if necessary

to prevent further racial discrimination, [to] require the

[county officials | to exercise the power that is theirs to levy taxes

to raise funds adequate to reopen, operate, and maintain

without racial discrimination, a public school system... .” Jd.

at 233 (emphasis added). Thus, even in the context of blatant

and explicit racial discrimination, the Court has signified that a

federal injunction is not available to order official action outside

the scope of powers provided under state law. See also Milliken

v. Bradley, 433 U.S. 267 (1977).43

In Rizzo v. Goode, supra, this Court overturned a district

court injunction that required a local police department to put

into effect a comprehensive program for improving the hand-

ling of citizen complaints. Moved by a concern for the

principles of federalism, the Court viewed the decree as “an

unwarranted intrusion by the federal judiciary into the dis-

cretionary authority committed to | police officials | by state and

local law to perform their official functions.” 423 U.S. at 366,

378-80. See also O’Shea v. Littleton, 414 U.S. 488 (1974).

Clearly, it is a much greater intrusion for the federal judiciary to

compel a state official not simply to exercise his discretionary

authority in a particular way, but actually to assert authority

that the state has not granted to him.

431n Milliken this Court approved, as part of a desegregation

decree, a district court order requiring the implementation of and

financing of remedial programs for children who were subject to past

discrimination. Even there the Court was aware of a lurking Tenth

Amendment and federalism problem, 433 U.S. at 291, but held the

district court had acted within its powers because it had not attempted

to restructure local government or mandate a parucular method of

financing. /d.

The district judge in this case, just as in Rizzo, has

impermissibly interfered with the State’s administration in an

area of vital concern. The evidence in this case makes apparent

the difficulty, complexity and delicacy of the management of

the fishery resource in the waters of the Pacific Northwest. See

generally Br. of Petitioner State of Washington at 19-24. As the

State explains, efficient and effective conservation entails

extremely detailed regulaulion, which must vary from area to

area and from day to day. Conservation “crises” are frequent,

and must be handled quickly and on a local level. In fact, in

passing the Fishery Conservation and Management Act of

1976, 16 U.S.C. §§ 1801 ef seg., Congress recognized the fact

that effective conservation of fishery resources requires essen-

tially loca! activity and control and, as we have previously

noted, specifically did not preempt state authority over fishing

in internal waters. 16 U.S.C. § 1856.

The State of Washington, in exercising its power over this

essentially local subject of regulation, has determined that its

regulatory agency with jurisdiction over fisheries should con-

cern itself only with conservation and, indeed, should not be

empowered to regulate the State’s fisheries for any other

objective. The federal court, however, has chosen to ignore this

legislative judgment of the State in an area where the State

clearly has primary authority. See 16 U.S.C. § 1856. Instead,

the court has ordered state fishery officials to perform govern-

mental functions that, according to the state supreme court, the

Washington legislature has not empowered them to perform.

This type of intrusion by a federal court into the internal

workings of a state government is precisely the kind of judicial

action found objectionable in Rizzo. It should not be coun-

tenanced here.4#4

44 The State of Washington has taken a more or less neutral

position on this issue, asserting only that it will implement ( as it must)

the decision of this Court. Br. of Petitioner State of Washington at 96.

The position on this question taken by a state executive department

cannot in any event be controlling. A state legislative judgment as to

the authority of that department has been made, and has been

‘nan

In this case the United States and the treaty Indians would

have the federal courts by “judicial fiat” impose official respon-

sibilities in “total disregard of state laws,” United States vy.

Yazell, 382 U.S. 341, 349 (1966), even though those laws are in

no way inconsistent with the federal constitution and con-

sequently ought to be respected by the federal judiciary. To

sustain the position taken by Judge Boldt would be to upset the

delicate balance of state and federal authority so carefully set

by this Court, and to compromise the underlying principles of

federalism so jealously guarded in Rizzo v. Goode, National

League of Cities v. Usery, Younger v. Harris, and many other

cases.

Ill. DUE PROCESS BARS EXTENSION OF THE DIS-

TRICT COURT'S INJUNCTIONS TO NON-TREATY

FISHERMEN WHO WERE NOT PARTIES TO THE

MAIN ACTION AND ALSO ENTITLES THEM TO

CONTEST ISSUES THAT THE STATE MAY HAVE

LITIGATED UNSUCCESSFULLY.

The remaining issues in this case need be reached only if

the Court is otherwise inclined to sustain the lower court’s

interpretation of the Stevens treaties and to leave in force the

district court’s plan for managing the State’s fisheries. The

issues that the Court must then confront test the power of a

unambiguously interpreted by the state supreme court. What ts

controlling in the federal courts are those legislative and judicial

decisions.

The State has suggested that a decision of this Court that Indian

treaty fishermen are not “of the same class” as non-treaty fishermen

would undercut the state supreme court’s decision in Puget Sound

Gillnetters Ass’n v. Moos, supra. and Washington State Commercial

Passenger Fishing Vessels Ass'n vy. Tollefson, supra. Br. of Petitioner

State of Washington at 97-99. We strongly disagree. The state court

decided clearly—and independently of its reasoning concerning the

interpretation of the treaty and the Equal Protecton Clause—that

state statutes vested the Department of Fisheries with the power to

regulate for conservation purposes only. Any decision that this Court

might render in this case could have no effect on either the reasoning

or outcome of that aspect of the state court’s opinions.

federal court to treat non-parties as bound by prior adjudica-

tions and to extend injunctions to persons who were not parties

to the underlying litigation, who did not participate in the

underlying litigation, and whose only connection with the

proceedings is their status as citizens of the named party-

defendant, the State of Washington.

In separate orders in August and September 1977 and June

1978, the district court took the extraordinary step of issuing

injunctions running not against the State and its various

agencies—the original named party-defendants in this litiga-

tion—but directly against all non-treaty fishermen, including by

name petitioners Purse Seine Vessel Owners Association and

Puget Sound Gillnetters Association. Most of the orders were

issued ex parte, and the non-treaty fishermen were expressly

denied the opportunity to contest the legal and factual founda-

tion for the June 1978 order. Thus, without the opportunity for

a hearing on the major, substantive issues involved in this case,

the non-treaty fishermen have been subjected to rigid injunctive

decrees whose economic impact has been, and continues to be,

devastating. As documented by the United States National

Marine Fisheries Service, Judge Boldt’s decision has reduced by

an average of from 60% to 85% the modest incomes of the men

who for many years have earned their livelihoods as fish-

ermen.45 In addition, for a number of the non-treaty fishermen,

the financial blow inflicted by the district court’s orders has

been compounded by prosecution and conviction for criminal

contempt.

The orders extending the injunctions to non-treaty fish-

ermen were affirmed by the court of appeals on the theory that

these non-parties were in “privity” with the State of Washing-

ton, and that they were, therefore, bound by the orders to the

same extent as the State. The appeals court conciuded that the

rights of the non-treaty fishermen were purely “derivative” of

the State’s power to regulate rights in the fish. As to claims that

the State was not an adequate representative of the interests of

45 See Br. of Petitioner State of Washington at 7-8.

the non-treaty fishermen, the appeals court stated bluntly that

“any complaints the fishers may have .. . are matters between

them and the State.” United States vy. Washington, §73 F.2d at

1133.

A. The State Was Not An Adequate Representative Of

The Non-Treaty Fishermen.

The non-treaty fishermen, as non-parties to the original

litigation in this case, cannot be bound by the results of that

litigation, since they were not adequately represented by the

State.

It is by now a truism that adequacy of representation is a

constitutional prerequisite for the binding of non-parties. See,

e.g., Hansberry v. Lee, 311 U.S. 32 (1940); Chase National

Bank v. Norwalk, 291 U.S. 431 (1934). In Chase National

Bank, for example, the Court held that “well-settled principles

of jurisdiction” were violated where a mortgagee of certain

property was barred from relitigating issues resolved in a prior

Suit against the mortgagor. 291 U.S. at 438. The Court held

that “the facts and considerations affecting the | mortgagee’ |

rights may be different from those presented to the State court

on behalf of the [mortgagor].” /d. at 439.46

Identical considerations apply here, since, as we show

below, the non-treaty fishermen have independent interests and

positions that differ from those of the State. Hence, it is legally

irrelevant to the rights of the non-treaty fishermen that, in the

original case, the district court actually reached conclusions with

hostile implications for them over the opposition of the State.

In this case the lower courts not only have sought to

preclude the non-treaty fishermen from asserting their legal and

equitable claims about the interpretation and enforcement of

the treaties, but, by summarily applying injunctions to them,

46 See also Sam Fox Publishing Co. v. United States, 366 U.S.

683, 691 (1961) (defendant class); Gonzales v. Cassidy, 474 F.2d 67

(Sth Cir. 1973) ( plainuff not bound by earlier class judgment because

of inadequate representation ).

have exposed them directly to civil and criminal contempt. The

due process principles reflected in Hansberry and Chase Nation-

al Bank, where the Court’s specific concern was with the

binding effect on non-parties of res judicata, apply a fortiori to

the effort to bind non-parties by injunction. In the absence of

adequate representation, non-parties cannot be bound by

injunction.

‘Without at least adequate representation, a judgment that

purports to bind non-parties suffers from two constitutional

defects. First, since there would be before the court no person

standing in the shoes of the non-party, the court would lack in

personam jurisdiction over the non-party—an essential requisite

for the court’s ability to bind a person, see Zenith Radio Corp.

v. Hazeltine Research, 395 U.S. 100 (1969); International Shoe

Co. v. Washington, 326 U.S. 310 (1945). Second, the non-

party would be denied his right to a day in court and a

meaningful opportunity to be heard, see Mullane v. Central

Hanover Bank and Trust Co., 339 U.S. 306 (1950); cf. Crowell

v. Benson, 285 U.S. 22 (1932), since his interests will not have

been pursued as vigorously as possible. See Note, The

Importance of Being Adequate: Due Process Requirements in

Class Actions Under Federal Rule 23, 123 U. Pa. L. Rev. 1217.

1228 n.46 (1975).

These due process concerns take on heightened signifi-

cance in this case, since the lower courts without foundation

have treated the original suit against the State of Washington as

tantamount to a defendant class action, with non-treaty fish-

ermen as the class members. Even apart from the many

problems inherent in defendant class actions,47 the facts here

show why that analogy will not work. The State did not

volunteer to serve as a representative of a class consisting of all

its citizens; it was conscripted into that alleged role. See Mudd

v. Busse, 68 F.R.D. 522, 529-30 (N.D. Ind. 1975). Moreover,

the State did not become aware of any obligation to serve as a

47 See generally Note, Defendant Class Actions, 91 Harv. L. Rev.

630 (1978).

fiduciary, representing its citizens, until the decision be-

low —long after adjudication of the issues that are critical to the

non-treaty fishermen. As a result, the State felt perfectly free to

adopt positions inconsistent with the interests and views of the

non-treaty fishermen, and it did so.

In any event, the constitutional requirement of adequate

representation requires nothing less than complete identity of

interest between the State and the non-treaty fishermen. The

issue, of course, is not the quality of the State’s counsel or the

adequacy of its defense of its interests. Rather the focus is on

whether, as a matter of law, the State stood in the shoes of the

non-treaty fishermen and was bound to serve as advocate for

their interests. Viewed against that backdrop, the inadequacy

of the State’s alleged role as representative is apparent on both

the theoretical and the practical level.

First, even assuming arguendo the soundness of the hold-

ing by the court below that non-treaty fishermen as citizens of

the State were in “privity” with the State, that analysis proves

too much. It follows necessarily from that analysis that the

treaty Indians were also in privity with the State, since they are

also citizens of the State and it is the status of citizenship that

provided the basis for the court’s holding as to privity. Thus,

the logic of the privity analysis leads inescapably to the

conclusion that the State, as party-defendant, was in privity

with doth sides of the present litigation—a conflict of interest as

extreme and intractable as that found in Hansberry. Hence, the

State’s participation in the original liugation provides no more

predicate for binding the non-treaty fishermen than it would

have for binding the treaty Indians, if the original action had

turned out differently.48

48 The notion that non-treaty fishermen are in privity with the

State for purposes of this litigation was also implicitly rejected by

Justice Douglas in Antoine v. Washington, 420 US. 194, 208-13

(1975) ( Douglas, J.. concurring ). In that case, in which the State was

a party, the Court held that the State was barred from applying its

game laws to Indians as a result of an 1891 treaty ceding certain

Indian lands to the federal government. Justice Douglas stated that

Second, the State of Washington had both a legal and

moral obligation to take positions in the original litigation that,

in its view, accommodated the interests of ail its citizens,

including, of course, the treaty Indians. “The department [of

fisheries] is given an affirmative duty ... to authorize the

harvesting of surplus [salmon], so as to fully utilize the

harvestable portions for the economic well-being of the citizens

as a whole.” Puget Sound Gillnetters Association v. Moos, 88

Wash.2d 677, 565 P.2d 1151, 1153 (1977) (emphasis added ).

The State’s proper role was that of umpire of the public interest,

not advocate for any contesting group. That was, in fact, the

role it sought to exercise, and not surprisingly neither of the

contesting groups was satisfied with its positions. It cannot be

argued that the State has “represented” either group adequate-

ly, so as to bind them from independently asserting their own

rights. Each group had, and has, divergent interests that the

State could not singly represent.

There can be no question that the Gillnetters and Purse

Seiners have substantial economic interests that exist indepen-

dently of the interests of the State, of the treaty Indians, and of

other commercial fishermen. They are entrepreneurs who have

invested substantial sums in their vessels, nets and equipment,

and who derive their principal source of income from fishing.

In the State of Washington entry into the commercial fishery is

the Indians’ immunity from the game laws could not be confined to

those areas of the ceded property that had remained public land.

At the same time, however, Justice Douglas stated that

“| whether the result would be different if the contest were between

the owner of the private tract and the Indian is a question that need

not be reached.” 420 U.S. at 212. If non-Indian citizens of the State

are automatically in privity with the State when the State is a party to

litigation involving Indian treaties, and automatically bound by the

outcome, Justuce Douglas would aot have reserved the right of a non-

Indian citizen to contend for a different outcome on the merits in a

later litigauon.

absolutely prohibited unless one purchases an existing license;49

the market value of such a license, at least before the apportion-

ment program ordered by the courts below, was approximately

$3,800 in the case of a gillnet license and $16,000 in the case of

a purse scine license.

There can be no doubt that the State did, in fact, attempt

to advance the interests of various groups—including troller

fishermen as well as sportsmen and charter boat oper-

ators— whose interests conflict with those of petitioners. Thus,

for example, in connection with the 1977 and 1978 orders the

State has not sought to increase the number of fish available to

commercial fishermen by reducing the number of fish to be

made available to sports fishermen; neither has the district

court. This is not surprising, since recreational fishermen

constitute a substanually larger number of persons, and con-

sequently a far larger political force with which the State has to

deal.

There are other examples of action or inaction by the State

that actually conflicted with and undermined the interests of the

non-treaty fishermen. The State chose not even to litigate the

underlying treaty interpretation issue in United States v. Ore-

gon, 302 F. Supp. 899 (D. Ore. 1969); it acceded to previous

orders of the court as a condition of intervention there.

Indeed, during the original district court proceedings, and

in clear conflict with the position and interests of the non-treaty

49 Wash. Rev. Code § 75.28.450 provides in pertinent part:

* Limitation upon salmon licenses and delivery permits— Intention.

The legislature finds that the protection, welfare, and economic good

of the commercial salmon fishing industry is of paramount importance

to the people of this state. Scientific advancement has increased the

efficiency of salmon fishing gear. There presently exists an over-

abundance of commercial salmon fishing gear in our state waters

which causes great pressure on the salmon fishery resource. This

situation results in great economic waste to the state and prohibits

conservation programs from achieving their goals. The public welfare

requires that the number of commercial salmon fishing licenses and

vessel delivery permits issued by the state be limited to insure that

sound conservation programs can be scientifically carried out.”

ee a

fishermen, the State Department of Fisheries actually supported

an apportionment. The department urged the court to “qualify

the treaty right by reference to an objective, definite standard”

to be stated in terms of a “percentage, set by the court, of the

harvestable salmon which originate in and return to the waters

of the State of Washington in the case area.”” The Department

then proposed that the treaty fishermen be alloted one-third of

the runs originating in the rivers that they fish. Moreover, in

the first appeal the State acquiesced in at least some aspects of

Judge Boldt’s apportionment formula, see 520 F.2d at 690, and

in the second the State accepted without serious challenge the

45-55 overall allocation itself. See 573 F.2d at 1130. Indeed,

state officials, pursuant to Judge Boldt’s initial decision in this

case, even brought enforcement proceedings against non-treaty

fishermen.

In addition, during the course of this litigation, the Gillnet-

ters and Purse Seiners as well as other commercial fishing

interests have been embroiled in a continuous series of lawsuits

against the State. The State has resisted demands by certain

groups of commercial fishermen in favor of sportsmen, charter

boat operators, and others, and in one of the cases now before

this Court, State of Washington v. Washington State Com-

mercial Fishing Vessel Association, No. 77-983, the Washington

Supreme Court granted mandatory relief sought by the non-

50 Oregon Gillnetters v. Moos, Thurston County Cause No.

55339; Schroeder v. Moos, Thurston County Cause No. 55387;

Washington State Commercial Passenger Fishing Vessel Ass’n v.

Tollefson, 87 Wash.2d 417, 553 P.2d 113 (1976), on rehearing, 89

Wash.2d 276, 571 P.2d 1373 (1977); Hartman v. State Game

Comm'n, 85 Wash.2d 176, 532 P.2d 614 (1975): Columbia River

Fishermen’s Protective Union v. Ray, Thurston County Cause No.

$8054; Columbia River Fishermen’s Protective Union v. Moos, Thurs-

ton County Cause No. 55338; Columbia River Fishermen’s Protective

Union v. Haw, Thurston County Cause No. 56658; Mariani v.

Tollefson, Thurston County Cause No. 46427; Puget Sound Gillnetters

Ass'n v. Tollefson, Thurston County Cause No. 50757; Purse Seine

Vessel Owners Ass'n v. Moos, 88 Wash.2d 799, 567 P.2d 205 (1977):

Puget Sound Gillnetters Ass'n v. Moos, 88 Wash.2d 677, 565 P.2d

1151 (1977).

treaty fishermen against the State. Moreover, even in this

Court, the State is taking some positions that are decidedly at

odds with the non-treaty fishermen, since it is prepared to

concede, for example—despite the holding of the Washington

Supreme Court in the case commenced by the petitioner

associations—that its agents may be empowered by federal

court orders to take actions in contravention of state statutes.

These conflicts are not trivial or speculative; they go to the

heart of the State of Washington’s alleged “representation” of

the interests of the non-treaty fishermen. In light of the losses

actually incurred by the non-treaty commercial fishermen, it ts

not difficult to see why they are convinced, with ample founda-

tion, that it is a grotesque fiction to say they are bound by the

outcome of the original litigation and are subject to the district

court’s decrees because the State “adequately represented

them.”

Where there have been similar conflicts, the federal courts

have consistently recognized that due process does not permit a

party to be treated as a legally adequate representative of non-

parties, capable of binding them. The tissue is most typically

addressed in connection with proposed certifications as class

actions. For instance in Phillips v. Klassen, 502 F.2d 362 (D.C.

Cir.), cert. denied, 419 U.S. 991 (1974), class certification was

denied because of the possibility that some members of the

class would have different views or interests than the purported

class representative: “Class members whose interests are

antagonistic to, or even ‘potentially conflicting’ with, the inter-

ests of the ostensibly representative parties cannot be bound,

consistent with the requirements of due process... .” /d.

Similarly, in City of Chicago v. General Motors Corp., 332 F.

Supp. 285 (N.D. Ill. 1971), aff'd on other grounds, 467 F.2d 1262

(7th Cir. 1972), the City of Chicago was found to be an

inadequate representative of all its residents because of the

likelihood that some members of such an “extraordinarily

diverse class” would have interests adverse to the city.>'

51 See also Dierks v. Thompson, 414 F.2d 453 (Ist Cir. 1969 );

Lukenas v. Bryce’s Mt. Resort, Inc., 66 F.R.D. 69 (W.D. Va. 1975);

Ward v. Luttrell, 292 F. Supp. 162 (E.D. La. 1968).

Manifestly, the same observation applies here. The State

cannot be considered to have been an adequate representative

of the interests of one of the conflicting groups of its citizens in

this litigation. Under the circumstances, the effective destruc-

tion of the livelihood of the non-treaty fishermen by a litigation

in which they did not have the opportunity to represent

themselves is inconsistent with their fundamental rights. Cf.

Green v. McElroy, 360 U.S. 474 (1959) (right to hold specific

private employment and to follow a chosen profession free

from unreasonable governmental interference comes within

liberty and property concept of Fifth Amendment); Ferrell v.

Dallas Indep. School Dist., 392 F.2d 697 (Sth Cir.), cert.

denied, 393 U.S. 856 (1968); Fitzgerald vy. Hampton, 467 F.2d

755 (D.C. Cir. 1972).

B. Privity Is Not A _ Substitute For Adequate

Representation.

The court below was of the view that adequacy of repre-

sentation by the State was not a necessary predicate for holding

petitioners bound by the earlier litigation and properly subject

to the trial court’s orders. It disregarded the fact of inadequacy

by treating the supposed relationship of “privity” between the

State and all its citizens as independently sufficient. In this

respect as well the court clearly erred. Common law notions of

privity are not substitutes for adequacy of representation. See

C. Wright & A. Miller, Federal Practice and Procedure § 2956,

at 568 ( West 1972 & Supp. 1977).

This Court has said that privity exists where the non-party

is “identified in interest” with the defendant. Regal Knitwear

Co. v. NLRB, 324 US. 9, 14 (1945).52 Thus, for purposes of

binding a non-party, “privity” exists only where the relation-

ship between the party and a non-party is characterized by such

a high degree of common interests—and the absence of any

52 See also Backo v. Local 281, 438 F.2d 176 (2d Cir. 1970),

cert. denied, 404 U.S. 858 (1971); Teas v. Twentieth Century Fox Film

Corp., 413 F.2d 1263 (Sth Cir. 1969).

conflicting or divergent interests—that adequacy of representa-

tion is assured. See C. Wright & A. Miller, supra, at 560.

The appeals court’s reliance on several water rights deci-

sions to support its privity holding was clearly misplaced, for in

each of those cases the state was a legally adequate representa-

tive of the rights and interests of the absentees. City of Tacoma

v. Taxpayers of Tacoma, 357 U.S. 320 (1958); Nebraska v.

Wyoming, 295 U.S. 40 (1935); Wyoming v. Colorado, 286 U.S.

494 (1932). In City of Tacoma, for example, the Court

suggested that the State of Washington’s participation in an

earlier Federal Power Commission proceeding operated as a

bar to subsequent relitigation of the same issues in claims

brought by the State or by any of its citizens. As the Court

pointed out, however, due process safeguards were carefully

observed in the agency proceeding and in a subsequent judicial

appeal by the appointment of a special state attorney general

with the responsibility for representing Washington citizens

whose views were in conflict with those of the state. 357 U.S. at

326. Of course, there was no similar effort in this case by the

State to serve as the undiluted advocate of the interests of non-

treaty commercial fishermen.

In Wyoming v. Colorado and Nebraska v. Wyoming, this

Court’s original jurisdiction was invoked to settle disputes

concerning the proper allocation of water between states. In

both cases the Court held that a judgment binding a state was

equally binding against private appropriators within the state.

In relying on these cases, however, the court below overlooked

the obvious fact that apportionment between states is quite

different from resolution of the interests of competing groups of

citizens within a single state. In the traditional inter-state water

rights case, each state represents the interests of its citizens as a

whole against the claims of another state and its citizens as a

whole.53 The interests of each state and its citizens are deemed

53 Significantly, however, in United States v. Nevada, 412 US.

§34 (1973), original jurisdiction of a suit was declined in favor of

litigation in district court where the individual users of the water rights

in dispute could intervene to assert their own interests.

SEE a _— = acaeieaian -- _ nae Nee

to be coextensive, and thus there is an identity of interest. As

we have seen, that is not true in this case. Inapposite for the

Same reasons are other decisions of this Court in which states

brought suits as parens patriae on behalf of the common

economic or environmental interests of their citizens. In each of

these cases, too, there was a complete ifentity of interest

between the state as parens patriae and all of its citizens.54

Moreover, the doctrine of parens patriae, orginally con-

fined to the notion that the sovereign may represent those of its

citizens legally incapable of acting for themselves, has devel-

oped to the extent that a state has standing to sue in those

causes in which it has its own “quasi-sovereign” interest,

different from those of its citizens. See Hawaii vy. Standard Oil

Company, 405 U.S. 251, 257-58 (1972). The quasi-sovereign

interest has been characterized as an “interest independent of

and behind the titles of [the state’s] citizens . . . .". Georgia v.

Tennessee Copper Co., 206 U.S. 230, 237 (1907), and as an

“interest apart from that of particular individuals who may be

affected,” Georgia v. Pennsylvania R.R., 324 U.S. 439, 451

(1945). This application of the parens patriae doctrine could

not justify binding non-party citizens who have independent

rights.

Finally, in New Jersey v. New York, 345 U.S. 370 (1953)

(per curiam ), this Court made the requirement of adequacy of

representation explicit in its denial of an intervention motion by

the City of Philadelphia. The State of Pennsylvania had

previously been granted leave to intervene in the case—a water

allocation dispute between New York and New Jersey. On a

34 See, e.g., Pennsylvania v. West Virginia, 262 U.S. 553 (1923)

(holding that Pennsylvania might sue to enjoin restraints on the

commercial flow of natural gas); Missouri v. Illinois, 180 U.S. 208

(1901) (holding that Missouri was permitted to sue Illinois and the

Chicago Sanitation District on behalf of Missouri citizens to enjoin the

discharge of sewage into the Mississippi River). See also North

Dakota v. Minnesota, 263 U.S. 365 (1923): New York v. New Jersey,

256 U.S. 296 (1921); Georgia v. Tennesee Copper Co., 206 U.S. 230

(1907); Kansas v. Colorado, 206 U.S. 46 (1907).

subsequent motion by the City of Philadelphia the Court denied

intervention because Philadelphia’s interests were adequately

represented by the State as parens patriae. “Counsel . . . have

been unable to point out a single concrete consideration to

which the [state’s] position does not represent Philadelphia’s

interests.” 345 U.S. at 374. Mere “privity” was not enough to

exclude Philadelphia from representing its own interests.

In the cases now before the Court, the disputes have

divided groups of citizens of the State of Washington with

conflicting interests. In no fair or realistic sense can the state be

regarded as speaking for each group or with any. That kind of

schizophrenia is not recognized either by the “privity” doctrine

or by the due process clause.

C. Non-Treaty Fishermen Are Not Affiliated With The

State Of Washington For Purposes of Applying

Injunctions To Them Directly.

Quite apart from the error in treating the non-treaty

fishermen as bound by the substantive rulings against the State

in the original litigation, Judge Boldt exceeded his authority in

extending a series of injunctions to them as if they were parties

to the litigation. Under principles of federal equity, as codified

in Rule 65(d) of the Federal Rules of Civil Procedure, the type

of “privity” that will permit the direct extension of an

injunction to a non-party is quite limited and certainly does not

exist in this case.

The basic principles governing the scope of federal court

injunctions against non-parties were set forth by Judge Learned

Hand in Alemite Manufacturing Co. v. Staff, 42 F.2d 832, 832.

(2nd Cir. 1930):

*{NJo court can make a decree which will bind anyone

but a party; a court of equity is as much so limited as a

court of law; it cannot lawfully enjoin the whole world at

large, no matter how broadly it words its decree. If it

assumes to do so, the decree is pro tanto brutum fulmen,

and the persons enjoined are free to ignore it. It is not

vested with sovereign power to declare conduct unlawful:

its jurisdiction is limited to those over whom it gets

personal service, and who therefore can have their day in

court.”

Contrary to any claim of expediency that might be offered to

justify what Judge Boldt has done here, Judge Hand rejected

the notion that an injunction may be extended to a non-party

simply because the judge believes it is “necessary” to achieve

his objective:

“Thus the only occasion when a person not a party may be

punished, is when he has helped to bring about, not merely

what the decree has forbidden, because it may have gone

too far, but what it has power to forbid, an act of a party.”

Id. at 833 (emphasis added ).

These limitations were approved and followed in Chase

National Bank v. Norwalk, supra®5, involving an injunction

against a city that also purported to bind all persons who might

be given notice of the decree. The Court’s opinion by Mr.

Justice Brandeis held that the injunction was void insofar as it

applied to state officials who were neither associates nor

confederates of the defendant city. The Court stated that

extension of the injunction to non-parties who “act indepen-

dently and whose rights have not been adjudicated . . . violates

established principles of equity jurisdiction and procedure.”

The basic teaching of these cases was substantially codified

in Rule 65(d) when the Federal Rules of Civil Procedure were

adopted in 1938. Rule 65(d) provides in relevant part that a

federal injunction or restraining order is

“binding only on the parties to the action, their officers,

agents, servants, employees, and attorneys, and upon those

in active concert or participation with them who receive

actual notice of the order by personal service or other-

wise.” (Emphasis added. )

55 See also Golden State Bottling Co. v. NLRB, 414 U.S. 168,

180 (1973).

As this Court has explained, Rule 65(d) was intended to

prevent injunctions from making “punishable the conduct of

persons who act independently and whose right

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