Petition — Washington v. United States
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IN THE | CLERK |
SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1978
No.
STaTE OF WASHINGTON, DEPARTMENT OF FISHERIES
and DonaLp W. Moos, Its Director,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondents,
MaKAH TRIBE, LowER ELWHA BAND OF CLALLAM
TRIBE, Port GAMBLE BAND OF CLALLAM TRIBE,
SuQUAMISH TRIBE, LUMMI TRIBE, NOOKSACK TRIBE,
and SWINOMISH INDIAN TRIBAL COMMUNITY,
Intervenors-Respondents.
STATE OF WASHINGTON, DEPARTMENT OF FISHERIES,
Petitioners,
vs.
UNITED STATES OF AMERICA, et al.,
Respondents.
PETITION FOR =< 4a) ed CERTIORARI
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SLADE GORTON,
Attorney General,
Epwarp B. MAckKIE,
Deputy Attorney General,
JAMES M. JOHNSON,
Sr. Asst. Attorney General,
Counsel for Petitioners.
Office and Post Office Address: Temple of Justice
Olympia, Washington 98504 (206) 753-6207
STATE PRINTING PLANT - OLYMPIA, WASHINGTON
IN THE
SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1978
No.
STATE OF WASHINGTON, DEPARTMENT OF FISHERIES
and DonaLp W. Moos, Its Director,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondents,
MakKaAH TRIBE, LoweR ELwHA Banp OF CLALLAM
Tripe, Port GAMBLE BAND OF CLALLAM TRIBE,
SuQUAMISH TRIBE, LUMMI TRIBE, NoOoKSACK TRIBE,
and SwWINOMISH INDIAN TRIBAL COMMUNITY,
Intervenors-Respondents.
STATE OF WASHINGTON, DEPARTMENT OF FISHERIES,
Petitioners,
vs.
UNITED STATES OF AMERICA, et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SLADE GORTON,
Attorney General,
EpwarpD B. MACKIE,
Deputy Attorney General,
JAMES M. JOHNSON,
Sr. Asst. Attorney General,
Counsel for Petitioners.
Office and Post Office Address: Temple of Justice
Olympia, Washington 98504 (206) 753-6207
ee
iil
TABLE OF CONTENTS
Page
OPINIONS BELOW
A. United States v. Washington, 573 F.2d 1123 (9th Cir.
April 24, 1978) ........seeee reece eee eeeeeceeceees
B. United States v. Washington, 573 F.2d 1118 (9th Cir.
April 24, 1978) .......-.ee eee e eee e cere n ee eeeeeees
QUESTIONS PRESENTED........-..--sssesseereee 4
CONSTITUTIONAL PROVISIONS, TREATIES, STAT-
UTES INVOLVED. ........cccccccccccccccccescces 6
STATEMENT OF FACTS .......--- see eect eteeeeeees 8
REASONS FOR GRANTING WRIT......-----+++++5: 12
A. Introduction ...........cccceece cece ereeeeeeees 12
B. Conflict in treaty interpretation between the state
court and lower federal courts ........--+-+++++: 20 -
C. The decisions of the United States District Court
and the United States Court of Appeals for the
Ninth Circuit conflict with prior decisions of this
Court interpreting the treaties in question ...... 23
D. Court of Appeals has sanctioned a departure from
the accepted and usual course of judicial
proceedings .........-seeeeeeeeeceeesseeseeees 26
E. International Fisheries Case .......---++++0s5+> 28
COPPICR TIBI . nck cece cca cccennreccravcescescsecs 36
Index to Appendix .........:eseeeeeeee eee sertseseees 39
iv
TABLE OF AUTHORITIES
Table of Cases
Page
Department of Game v. Puyallup Tribe, 414 U.S. 44 (1973)
PIED OEE ek cca ca dana een eee 13, 15, 20, 24, 26, 30
International Fishery Case — United States v. Washington,
573 F.2d 1118 (9th Cir.
RO Gs WOE Soc ceneeaxicltee 3, 4, 18, 19, 28, 34
Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) .......... 33
Monominee Tribe v. United States, 391 U.S. 404
IS 65:05 WW6 wins pa waa hg aon Cale eee 20, 33
Puget Sound Gillnetters Assn. v. Moos, 88 Wn.2d 677, 565
ee BOO. CONNOR so ing nnd atecdeaec oeee eee 21, 22, 23
Puyallup I — Puyallup Tribe v. Department of Game, 381
Cis en CRUE a o's <Siwawkbacudec ogee eee 14, 20, 24, 25
Puyallup II — Department of Game v. Puyallup Tribe, 414
Bree GE CEO « Sei citas ceatkoee 13, 14, 15, 20, 26, 30
Puyallup III — Puyallup Tribe v. Department of Game, 433
ee 8 EE AG ae 14, 20, 24, 26
Puyallup Tribe v. Department of Game, 391 U.S. 392 (1968)
a ee ee 14, 20, 25
Puyallup Tribe v. Department of Game, 433 U.S. 165 (1977)
a, ke SNe tmcco 14, 20, 24, 26
Tulee v. Washington, 315 U.S. 681 (1942)
United States v. Washington, 384 F.Supp. 312 (W.D. Wa.
1974), 520 F.2d 676 (9th Cir. 1975), cert. den. 423
OE. BOBS CIOTED oo. cdceccdcun. 2, 4, 15, 16, 17, 25, 28, 29, 35
United States v. Washington, 573 F.2d 1118 (9th Cir. April
24, 1978) [International Fishery Case] ...3, 4, 18, 19, 28, 34
United States v. Washington, 573 F.2d 1123 (9th Cir. April
24, 1978) [Washington Fishery Case] ....... 2, 15, 16, 21, 25
United States v. Winans, 198 U.S. 371 (| rs 23
Washington Fishery Case — United States v. Washington,
573 F.2d 1123 (9th Cir. April 24,
SOVED Siccnuuannsewsdeceueenee Cee 2, 15, 16, 21, 25
TABLE OF AUTHORITIES (cont.)
Table of Cases
Page
Washington State Commercial Passenger Fishing Vessel
a v. Tollefson, 87 Wn.2d 417, 553 P.2d 113
ee oie ak aa wet sed eh ws 6446 ai 22
Z & F Assets Realization Corp. v. Hull, 311 U.S. 470 o
et eek sak ieee eee evan cheer easeenes
Constitutional Provisions
United States Constitution
Ne a ace eneceusiaaa ee :
ee pee wan ede deepens :
ee ag wie bd bare 6b ekee ¢
Amendment X seen ee eee eee e teen eee eee teen ene /4
ec ab wlan sale ee eee wise
Treaties
United States :
10 Stat. 1132 (Treaty of Medicine Creek) ............. y
10 Stat. 927 (Treaty of Point Elliott) .................
12 Stat. 933 (Treaty of Point No Point).............. 7,12
12 Stat. 939 (Treaty with the Makahs, Treaty of Neah :
I cas CMs 6 c.Cb o's 4b ctw d shee pedesseeescene
12 Stat. 951 (Treaty with the Yakimas)...............
12 Stat. 971 (Treaty with the Quinaeilts, Treaty of
EE Ae ee ee ee
50 Stat. 1355, supplemented by 8 T.1A.S. 3687, 8 U.S.T.
1057 (Convention with Canada) .............. 3, 19, 28, 33
Statutes
16 USC 776-776 f (Sockeye Salmon or Pink Salmon Fishing -
ee ce Sa sab k 5 bs 5 ote win 66.0% 06 7, 19,
16 USC 1801-1882 (Fishery Conservation and Management -
re ee cs pat kawehavecesesetevscns i,
Washington State .
Ee ee Cae b ek ea con evesisoueees i
Miscellaneous
25 CFR 256 (B) (Federal Register, Vol. 42, #122, Friday, 7
aa hwo rane serevcecsnssneseses 35
IN THE
SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1978
No.
STATE OF WASHINGTON, DEPARTMENT OF FISHERIES
and DonaLp W. Moos, Its Director,
Petitioners,
VS.
UNITED STATES OF AMERICA,
Respondents,
MakKaAH TRIBE, LOWER*ELWHA BAND OF CiLALLAM
TRIBE, Port GAMBLE BAND OF CLALLAM TRIBE,
SUQUAMISH TRIBE, LUMMI TRIBE, NOOKSACK TRIBE,
and SWINOMISH INDIAN TRIBAL COMMUNITY,
Intervenors-Respondents.
STATE OF WASHINGTON, DEPARTMENT OF FISHERIES,
Petitioners,
vs.
UNITED STATES OF AMERICA, et al.,
Respondents.
PETITION FOR hedge OF CERTIORARI
T HE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioners Washington State, Washington
State Department of Fisheries and the Director
of that Department, hereinafter referred to as
the “State,” pray that a writ of certiorari issue
to review judgments and opinions of the United
tN
States Court of Appeals for the Ninth Circuit
entered in these proceedings on April 24, 1978.
OPINIONS BELOW
The petitioner has, pursuant to Rule 23.5,
joined two decisions by the Ninth Circuit which
involve identical or closely related questions on
the nature and extent of Indian treaty fishing
rights.
A. United States v. Washington, 573 F. 2d
1123 (9th Cir. April 24, 1978) (hereinafter refer-
red to as “Washington fishery case.’’)
In 1977, the United States and numerous
Indian tribes requested the District Court to
order that specific numbers of fish be guaranteed
to treaty Indians (approximately 50% by run,
species and area). They also requested the Court
to assume direct control by injunction of the
fishing activities of non-Indian commercial
net fishermen with enforcement by citation of
violators for contempt of court. The District
Court in the exercise of its continuing jurisdiction
in United States v. Washington, 384 F.Supp.
312 (W.D. Wa. 1974), 520 F.2d 676 (9th Cir. 1975),
cert. den. 423 U.S. 1086 (1976), granted those
requests in an unreported series of orders cul-
minating in a Salmon Management Plan (App.
61-77), Findings of Fact and Conclusions of
Law Re Enforcement of 1977 Fisheries Orders
(App. 79-87) a Memorandum and Preliminary
Injunction a Preliminary Injunction Re En-
forcement of 1977 Fisheries, (App. 35-60), a Pre-
liminary Injunction Order (App. 93-100), and a
Preliminary Injunction Staying State Court
(App. 101-104).
The petitioners’ appeals of those orders were
consolidated by the Circuit Court of Appeals
with mandamus actions brought by nonparty
fishing organizations! whose members’ activ-
ities were enjoined by orders of the United States
District Court. The United States Court of Appeals
on April 24, 1978, entered a decision affirming
the District Court (573 F. 2d 1123 (1978)) (App.
1-28).
B. United States v. Washington, 573 F. 2d
1118 (9th Cir. April 24, 1978) (hereinafter referred
to as the “International Fishery case.’’)
The United States on behalf of certain In-
dian tribes, and some tribes as intervenors, re-
quested in mid-1975 that treaty Indians be
granted special fishing seasons in waters under
the regulation of the International Pacific
Salmon Fisheries Commission. That Commis-
sion (hereinafter referred to as the “IPSFC” or
“Commission”’) was established by a 1937 Con-
vention between United States and Canada, rati-
fied by the Senate and proclaimed August 4, 1937’
(50 Stat. 1355, supplemented by 8 T.1.A.S. 3867,
‘Despite requests, no non-Indian fishing group organizations have
been permitted intervention by the United States District Court judge
handling this litigation, although one group was granted intervention by
another judge.
EEE EO ee
!
4 5
8 U.S.T. 1057). The plaintiffs and intervenors
also sought a court order that treaty Indians are
entitled to 50% of the American share of those
runs. The United States District Court for West-
ern Washington, acting under its continuing
jurisdiction in United States v. Washington,
supra, conducted hearings and entered orders
which culminated in Supplemental Findings of
Fact and Conclusions of Law, Decree and In-
junction (App. 105-20). The District Court decided
that treaty Indians do not have to comply with
certain regulations of the IPSFC and that they
are entitled to 50% of the American harvest of
those fish runs.
Petitioners appealed the 1975 decision (No.
75-2835). An amending order and one establish-
ing another special Indian fishery were also
appealed later. (No. 76-1042). The two were con-
solidated. Notwithstanding the request to expe-
dite the appeals, these matters were not heard
by the court of appeals until January of 1978.
An opinion was rendered on April 24, 1978, dis-
missing both appeals as moot. (573 F.2d 1118
(1978) (App. 29-34).
QUESTIONS PRESENTED
(1) Do the Indian treaties require an alloca-
tion of 50% of the harvestable fish to treaty In-
dian tishermen?
(2) Do the Indian treaties mandate an allo-
cation of harvestable fish between Indian and
non-Indian fishermen when they both have an
opportunity to participate in the fishery on a
nondiscriminatory basis? __
(3) Does the district court’s equitable power
in conjunction with treaty provisions permit an
allocation of the fishery resource between Indian
and non-Indian fishermen when they both have
an opportunity to participate in the fishery on a
nondiscriminatory basis? If so, has the court
exceeded those powers by its specific 50% alloca-
tion formula and implementing orders?
(4) Does an allocation of a specific number
or percentage of fish to treaty Indians, who are
citizens, and a reduction or prohibition on com-
mercial fishing by other citizens constitute a
violation of the Constitutional doctrines of equal
protection or the prohibition against granting
special privileges and immunities.
(5) If the Indian treaties mandate an allo-
cation of the harvestable fish to. Indians, does
the United States/Canada Convention of 1937
supersede that requirement for the fish harvest
which is subject to the jurisdiction of the Inter-
national Pacific Salmon Fisheries Commission?
(6) Do the Indian treaties, or can the United
States District Court, grant Indians an immun-
ity from the enforcement of IPSFC regulations?
(7) Can the United States District Court
assume control of the management of the fishery
resource within Washington state waters?
CONSTITUTIONAL PROVISIONS, TREATIES,
STATUTES INVOLVED
Constitutional provisions, treaties and stat-
utes involved are as follows and are reproduced
in Appendix A, infra, pp. A-128 to A-167.
Constitutional Provisions of the United States
Appendix
Page
(a) Article II, Section 2, Powers of
IEE, cc atu deh dak shane tote ecaes A-128
(Section 2 Clause 2) (Presidential powers
with the Advice and Consent of the Sen-
ate to make Treaties)
(b) Article VI, Debts, Supremacy
I IN. Si cvcascdisasiencs A-129
(c) Amendment V, Due Process .... A-129
(d) Amendment X, Powers Reserved
i RT ED 5 6h Kc 50 Ke ov cccccacee A-130
(e) Amendment XIV, Citizenship
rights not to be Abridged .............. A-130
TREATIES
Six treaties were entered into by the United
States with various Indian tribes and bands
living in the State of Washington in 1854 and
1855. Those six treaties each contain a similar
fishing provisions and only those provisions are
set forth in the appendix.
Appendix
Page
(a) Treaty of Medicine Creek, 10
BE. DEN, Cai a ohana ey cgdeees cess A-131
(b) Treaty of Point Elliott, 12 Stat.
(c) Treaty of Point No Point, 12 Stat.
A ick Ge acd he hAwee cece eas cden eet ss A-132
(d) Treaty with the Makahs (Treaty
of Neah Bay), 12 Stat. 939. ........... A-132
-(e) Treaty with the Quinaielts
(Treaty of Olympia), 12 Stat. 971. ..... A-133
(f) Treaty with the Yakimas, 12 Stat.
se ueae yk buen a eke eeaees A-133
Convention with Canada 1930 and 1956
Supplement. 50 Stat. 1355, 8 TIAS
St TS Sac vasesas sees. A-135-
STATUTORY PROVISIONS
United States Code, Title 16:
Section 776 - 776f (Sockeye Salmon
or Pink Salmon Fishing Act of
EN cgi sé uch epkarce dh teak ue wean A-159-61
Section 1801 - 1882 (Fishery Con-
servation and management Act
ak 5 uU CanGe eye dc nawcn A-162-67
Revised Code of Washington
RCW 75.40.060 Fraser River sockeye
salmon fishery—Adoption, en-
forcement of convention author-
BOE Co. cu wip een eiwanteeene ee A-167
STATEMENT OF FACTS
In anticipation of an increased influx of
settlers in the Pacific Northwest a series of
treaties were executed in 1854 and 1855 with
Indians in what are now the states of Washing-
ton, Oregon and Idaho. At that time the Indian
settlements were widely dispersed and fish was
a major source of food supply with the Indian
fishery being primarily for subsistence. While
the treaties contemplated the creation of reser-
vations, they also provided for the continuation
of Indian fishing, each of the treaties adopting
essentially similar language.
* * * the right of taking fish at usual and
accustomed grounds and stations is further
secured to said Indians in common with all
citizens of the territory. 1
Until the invention and perfection of the
canning process in the late 19th Century, com-
mercial fishing enterprises in Washington were
rudimentary and mostly unsuccessful. The ad-
vent of the canning process gave rise to the devel-
opment of large-scale commercial fisheries which
have been and now are open to all citizens, both
Indians and non-Indians. The Indians use es-
sentially the same fishing gear as non-Indians
and have the same economic incentives to partici-
pate in the fishery. They are not, however,
charged license fees nor do they pay landing
taxes.
\t Tulee v. Washington, 315 U.S. 681 (1942).
|
The five species of salmon: chinook, Coho,
Chum, Pink and Sockeye, spawn in fresh water
and migrate to the ocean where they reach ma-
turity. Each salmon subsequently seeks to return
to its river of origin to reproduce the next gener-
ation of its species. In Washington these fish
are produced naturally in 15 major river systems
and their tributaries, and 239 small independent
streams. In addition, the state augments natural
runs with hatchery produced fish and in some
rivers and streams the state has created runs of
fish which did not historically exist. In addition
to the fish which are spawned in Washington
rivers, a substantial Washington fishery occurs
on Canadian Fraser River fish runs which are
subject to the jurisdiction of the International
Pacific Salmon Fisheries Commission.
For many years the State of Washington has
regulated commercial and sports fishing to con-
serve the salmon species and provide for an
orderly fishery. The IPSFC has similarly exer-
cised regulatory control over the harvest of
Fraser River salmon in the waters of the State of
Washington and the Province of British Colum-
bia since the ratification of the United States-
Canada treaty in 1937.
The United States District Court in this
proceeding originally decreed that the Indian
treaties mandated an opportunity on the part
of treaty Indians to harvest 50% of the fish runs.
This 50% formula actually provides substantially
in excess of 50% of the fishery to treaty Indians.
The court determined that the Indian harvest
of fish for ceremonial or subsistence purposes,
plus that within the boundaries of an Indian
reservation, are first subtracted from the total
fish available for harvest before dividing the
remainder into equal shares. Finally, the court
has declared that when Indians harvest fish out-
side of their usual and accustomed grounds,
those harvests are included in the non-Indian
share.
The District Court has subsequently con-
verted the “opportunity” to a “guarantee,”
having allocated specific numbers of fish by
species in areas for the Indian fishery. Full de-
tails of such specific allocation by number and
species are set forth in the Appendix, pp. 43
to 53. In Bellingham Bay, for example,
Chinook salmon allocation is: Indians - 47,200,
non-Indians - 31,300 (the court assumed that
10,600 Chinook were harvested in sports and
ocean troll fishery). The division for Skagit Bay
is: Indians - 6,600; non-Indians - 2,800 (the court
assumed a non-Indian harvest of 1,800 in the
sports and ocean troll fisheries). South Sound
Coho: Indians - 231,000; non-Indians - 154,000
(the court estimated 100,000 to have been har-
vested in the sports and ocean troll fishery).
In the foregoing allocation of a guaranteed
fish harvest for Indians reference has been made
to the ocean fisheries. In 1976 Congress enacted
the Fisheries Conservation and Management
Act (PL 94-265; 90 Stat. 331, 16 USC 1801-82).
Under that act the United States government
has assumed preemptive jurisdiction to regulate
all fisheries in the zone commencing 3 miles off
shore to 200 miles. It is within that fishing zone
in which the United States is exercising pre-
emptive jurisdiction that a substantial portion
of the ocean fishery occurs.
The District Court in implementing what it
believed to be the mandatory allocation of the
fishery resource between Indians and non- In-
dians has essentially assumed responsibility for
the management of the fishery resource in the
case area. The court has authorized various
tribes to enforce fishing regulations in areas
outside of their reservations. It has also required
that approval be obtained from Indian tribes for
some state fish management decisions. The state
courts have been enjoined from proceedidng
with litigation which has been filed in those
courts. The District Court has effectively re-
quired special Indian fishing seasons in IPFSC
waters which are not authorized by that inter-
national commission. The court has also, in order
to enforce its orders, invoked contempt powers
against nonparties and has effectively forced
the federal agencies to undertake actions which
are beyond their normal duties and responsibili-
ties.
REASONS FOR GRANTING WRIT
A. Introduction
Petitioners are currently caught between
conflicting decisions of the highest appellate
court of the state and the lower federal courts
involving treaty Indian fishing. We have de-
scribed the conflict and have sought review of
the state court decisions in No. 77-983. The in-
stant petition presents the opportunity to review
Jointly? those conflicting state and federal] court
decisions which can only be resolved by this
court.
The fundamental question in this litigation,
which has had substantial social, economic and
governmental repercussions, is the meaning of
the treaty provision:
The right of taking fish. at all
, usu
accustomed grounds, and stations, is a
secured to said Indians, in common with all]
citizens of the Territory, and of erecting
temporary houses for the urpose of curing
together with the vivilens of huntin
gatherin roots and berries, * * * on cna
— unclaimed lands. Provided however
: cs pre shall not take shellfish from any
eds staked or cultivated by citizens. (Article
4, Treaty of Point-no-Point, 12 Stat. 933)
“If this petition and ‘tion ; o>
dated for hearing, no”? No. 77-983 are granted and consoli-
The Circuit Court has affirmed the District
Court conclusion that that provision mandates
50% plus® of the harvestable fish be allocated to
Indians. Virtually all of the other issues in this
litigation essentially have involved the imple-
mentation of that allocation and its impact upon
management of the fishery resource by the State
of Washington and the International Pacific
Salmon Fisheries Commission, and the substan-
tial impact upon non-Indian fishermen and
others.
Not only is there a substantial conflict be-
tween the state and federal court decisions, but
there are also conflicts between those federal
court decisions and prior decisions by this
court. While there have been a series of decisions
by this Court defining treaty Indian fishing
rights under the treaty language in question,
none of those decisions have required an alloca-
tion of the resource between Indians and non-
Indians when both groups have been permitted
access to the fishery resource on a nondiscrimin-
atory basis.
The Department of Game v. Puyallup Tribe,
414 U.S. 44 (1973) (hereinafter referred to as
“Puyallup II’) and Puyallup Tribe v. Depart-
3The court’s allocation provides that the Indians are entitled to (1) a
reservation catch, (2) ceremonial harvest, and (3) a subsistence fishery,
all three in an amount determined by the Indians. All three come off the
top; that is, they are subtracted from the total before dividing into 50%
shares. Furthermore, the court has decreed that fish caught by Indians
outside their usual and accustomed grounds count as part of the non-
Indian share.
i4 15
er wi be na ees m4 wt + A (1977) (hereinafter And the same 50% formula has been applied by
reterr o as “Puva IIT” os
reference to an sitet ST ctemantgre a the District Court to the Indian fishery in Wash-
cases, this Court indi ington waters under IPSFC jurisdiction on
not clo Indi erm rig a — ve " stocks bound for Canada’s Fraser River though
els aaa wrevalloangrd while permitting only a few tribes have treaty rights in those
non-Indians to continue to fish unless there had waters. This is “Intemistional Pislisry case.”
been an allocation of the fishery resource. The
allocation reference in Puyallup II, supra, ad-
dressed the question of whether a closure of In-
dian fishing while permitting the continuation
of non-Indian fishing constituted a discrimina-
tory closure. See, Puyallup Tribe v. Department
of Game, 391 U.S. 392 (1968), hereinafter re-
ferred to as “Puyallup I.” This is in distinct con-
trast to the present decree which requires that
supra.°
The court of appeals affirmed the allocation
and implementing management system® in the
“Washington Fisheries case,” supra, on the basis
that it was an exercise of equitable discretion by
the district court (App. 11) yet the District
Court had adopted the 50% sharing as a matter
of law, mandated by the treaty language.’
marine areas which are open and available on In contrast, this Court implicitly rejected
a nondiscriminatory basis for fishing by Indian the concept that the treaty mandated any spe-
and non-Indian groups to be closed to non- cific allocation in Puyallup II, supra, stating:
Indian commercial fishing so that the Indians What formula should be employed is not for
will harvest 50% of the resource. for us to propose. There are many variables—
In the instant proceeding, the United States 5In each of those cases, prior to the court’s orders, the Indians had
; ° . had the opportunity to participate along with non-Indians in the fishery
District Court ruled that a 50% allocation ls re- harvest, on a nondiscriminatory basis and would continue to have that
quired by the treaty as a matter of law. That opportunity even in the absence of such orders.
court has consistently applied the 50% formula *In that case, the federal district court determined the numbers of
in di ‘ ‘ : fish produced by area of origin and set specific numbers of fish the In-
In disparate factual situations. The “Washing- dian fishermen were to be provided, by area and species. (App. 43-53) Non-
ton Fisheri ” . : Indians were enjoined from net fishing in those areas unless authorized
erles Case, supra, involves the Indian by a “Hotline” (recorded telephone message). (App. 97-98) The non-Indians
j . . were not authorized to fish where such fishing could result in treaty
fishery _ Washingt on waters on primarily Wash- Indian fishery catching fewer than the numbers guaranteed the Indians
ington origin stocks, both hatchery and natural. a
: : ; : ? 8The District Court stated,
an Bie ost mgd 3 oak tanto and species was made in 1977, after “By dictionary definition and as intended and used in the Indian
tial Task Force’ y nl ‘ tates Attorney communicating a Presiden- treaties and in this decision ‘in common with’ means sharing equally
pve es concern that a lesser share for that year would be more the opportunity to take fish as ‘usual and accustomed grounds and sta-
tions;’ * * * ” U.S. v. Washington, 384 Fed. Supp. 312, 343 1974).
the number of nets, the number of teel
that can be caught with meth. the tom
where nets can be placed, the length of the
net season, the frequency during t
when the nets may bs nok shit a
Supra, at 49.
Notwithstanding this specific statement by this
Court, the District Court,’ and the Circuit Court
in affirming, failed to consider those or any other
variables which this Court deemed relevant in
Puyallup II, supra. The Court of Appeals stated:
Comparison between the number
of treat
and nontreaty fishers, or the quantity of fish
each category has an opportunity to take, are
rae irrelevant under the law.
(“Washington Fishery case’’, supra, at 1128)
In the “Washington Fishery case,” supra,
two of the three Court of Appeals Judges indi-
cated doubt that 50% is the proper formula.
It has not been clearly demonstrated that the
rule of fifty percent apportionment is a neces-
sary and proper implementation of those
treaty nights. (pp. 1135-1136) (Judge Kennedy
concurring quoted with approval by J udge
Wallace in his separate concurri J ut
App. 28 and 28) urring opinion.
. The two concurring judges, despite believ-
ing that the allocation was not justified, felt
they were bound by the earlier decision in United
States v. Washington, supra. The instant proceed-
ing is a continuation of that proceeding which this
Court has not considered on the merits. It must
be emphasized that the current decision in United
States v. Washington, supra, here sought to be
reviewed differs from the original judgment. This
is dramatically evidenced by the characteriza-
tions of that decision made to this Court by the
United States when review was sought of the
original decree in United States v. Washington,
supra.
The state anticipated that the District
Court’s original decree might be transformed
from an “opportunity” to harvest up to 50% to
a “guarantee” of a specific number of harvested
fish. In opposing the petition for certiorari of the
State, the United States assured this Court that
the District Court was not guaranteeing any
particular harvest to the tribes:
It should be clear that the 50 percent guide-
line is not a guarantee of any harvest. It is
simply a readible understandable measure
of what portion of the harvest the tribes as
a group may rightfully insist they should
have a chance to take in varying circum-
stances. The share worked out for specific
runs in particular years for specific tribes
will vary from the guideline, in accordance
with extent of Indian ae capability, the
size of the run, the degree of Indian and non-
Indian interest in the run, and the give and
take of cooperative operations.
Page 20, United States’ brief in opposition to
certiorari, Nos. 75-588, 592, 705 supra, emphasis
in original.
18
The District Court’s present implementation of
its decision (at the request of the United States
Government) does not comply with these assur-
ances. The district court’s implementation in the
Washington Fishery case is a guarantee to the
Indians of a specific number of fish from each
run. See App. 43 to 53 and pp. 10 of this peti-
tion. Furthermore, despite the fact that many
treaty Indians may choose not to fish a particu-
lar run (particularly true of the International
fishery), the court has not made any meaning-
ful changes in its 50% formula.
Among the decisions included in this peti-
tion is the International Fisheries case, supra.
That decision has extended the District Court’s
50% formula to fisheries which are subject to the
jurisdiction of the International Pacific Salmon
Fisheries Commission. These actions by the
court have provoked an objection from the Ca-
nadian government and the Commission.
The dollar amount of the fishery impacted
by these orders is in the 10’s of millions of dol-
lars. Substantial numbers of non-Indian citizens
are being restricted in their fishing activities
while neighbors who are descendants fr
om mem-
bers of bands, tribes? or groups party to the
treaties are granted special additional fishing
times in addition to those they share with their
non-Indian neighbors.
It is thus ironic that the Court of Appeals,
in dismissing the appeals in the International
Fisheries case, supra, admitted:
It must be quite apparent that the case ten-
dered for our decision here would require us to
address procedural questions that touch
upon fundamental principles controlling the
delicate balance of state and federal power.
Beyond those questions we would further be
required to interpret substantive rights of
the parties under United States v. Washing-
ton that are of great significance to the fish-
ing industry in the Northwest.
This extension of the 50% formula to the
commission waters is in clear contrast to the
position asserted to this Court by the United
States in their reply to the state’s petition for
certiorari in 75-588, where, at page 33, it was
stated:
Both courts below apecnees recognized the
supremacy of IPSFC regulations. If any
noe, vt actions interfere with the regu-
lations of the Commission, they are not
sanctioned by the decision.
The treaty with Canada requires both coun-
tries to enforce the commission regulations
against “every national and inhabitant.” (Art.
IX of the Convention, App. 135-58) The implement-
ing federal enactment (16 U.S.C. § 776, Appendix
160) makes it unlawful for any person to
violate any regulation of the commission. There
is no exemption for Indians in either the con-
vention or in the federal implementing act. There
20
is no legislation which can be read in pani
materia to create an exemption as was present
in Menominee Tribe v. United States, 391 U.S.
404 (1965). Thus, there is no legal justification
for special Indian entitlement to fish under the
jurisdiction of the IPFSC. The fishery in the
commission marine waters is available on an
open, nondiscriminatory basis to both Indians
and non-Indians. It is a violation of the treaty
with Canada for the District Court to have inter-
ferred in the operations of that fishery. Further,
a district court does not have jurisdiction to inter-
fere with the conduct of international relations.
B. Conflict in treaty interpretation be-
tween the state court and lower fed-
eral courts.
There is a conflict between the District Court,
the Ninth Circuit Court of Appeals and the Wash-
ington State Supreme court (the state’s highest
court) justifying the issuance of a Writ of Certio-
rari.
The Washington Supreme Court has inter-
preted the trea*y language in three decisions
which have been reviewed by this Court (Puyal-
lup I, II, and III, supra.) The petitioners have
sought review of two more recent decisions now
pending in No. 77-983.
These recent two state court decisions are in
direct conflict with the decisions of the circuit
and district courts. The conflict was clearly rec-
-———
21
ognized by the federal district court:
In Puget Sound Gillnetters Association uv.
Moos, the Washington Supreme Court said
that the Director of Fisheries may not “allo-
cate fish among competing claimants for
a other than conservation,” and that
e may not “allocate fish to treaty Indians
or to non-Indians.” Those rulings prevent
defendants from complying with earlier de-
crees of this Court ”
Findings of Fact and Conclusions of Law Re:
Enforcement of 1977 Fisheries Orders dated Sep-
tember 27, 1977, App. 81.
The holdings of the Washington Supreme
Court are contrary to the affirmed decision
and decree of this court on the federal ques-
tions of the nature and scope of the treaty
fishing rights of Indian tribes and the obhli-
gations of the State toward those rights,
which decision and decree are binding upon
the defendants in this case, * * *
Memorandum Order and Preliminary Injunc-
tion dated August 31, 1977, App. 38.
Similarly the circuit court stated:
The state and the non-Indian fish catchers
argue that to treat Indian fish catchers dif-
ferently from non-Indians in allocating fish-
ing opportunities and determining fishing
regulations is a patent violation of basic
equal protection principles. The Washington
state courts have accepted this argument.
See Washington State Commercial Passen-
er Fishing Vessel Association v. Tollefson,
9 Wash.2d 276, 571 P.2d 1373 (1977).
and then proceeded to reject that construction of
the treaties. Washington Fisheries case, supra at
1127 and 1128 (App. 6).
The conflict has also been recognized by the
Washington Supreme Court which also refused
to accede to the view of the lower federal courts:
We are asked to accede to the federal dis-
trict court’s interpretation of the Medicine
Creek and other Indian treaties, whereby it
found that treaty Indians have the right to
50 percent of the salmon runs, plus fish for
ceremonial and subsistence purposes. It ap-
are that, if this ruling is given effect, non-
ndian fishermen will be required to refrain
from fishing until the Indians have har-
vested 50 percent of the fish runs, plus an
undetermined additional number of fish. _
Being cited no authority for the proposi-
tion that federal district courts have exclu-
sive jurisdiction to construe Indian treaties
—treaties which affect important interests
of the state—we adhere to our own interpre-
tation of the treaty. (Puget Sound Gillnetters
Assn. v. Moos, 88 Wn.2d 677, 691, 565 P.2d
1151 (1977)).
While refusing to concur with the lower fed-
eral courts, the Washington Supreme Court rec-
ognized that:
The resolution of this question cannot come
from this court or from the federal district
court, if no definitive authority upon the
subject exists. It must come from a higher
court whose decisions are binding upon both
of us. In short, this dilemma can be resolved
only by the Supreme Court of the United
States, * * *
Washington State Commercial Passenger Fish-
ing Vessel Assn. v. Tollefson, 87 Wn.2d 417, 421,
553 P.2d 113 (1977).
In an opinion, two state supreme court jus-
tices, in referring to a hope that this issue will
be resolved by this Court, stated:
Such an interpretation by the ultimate legal
authority is the only way the current legal,
economic and social conflict can be resolved.
Most assuredly, this unresolved clash be-
tween federal and state judicial systems and
between economic and social interests can-
not be permitted to continue. Too much is at
stake in all areas.
Puget Sound Gillnetters Assn. v. Moos, supra,
at 698.
C. The decisions of the United States
District Court and the United States
Court of Appeals for the Ninth Cir-
cuit conflict with prior decisions of
this Court interpreting the treaties
in question.
This Court has considered the same treaty
language on several occasions. In United States
v. Winans, 198 U.S. 371, a private landowner
could not prohibit access by a treaty Indian to
his usual and accustomed grounds and stations.
The treaty lanuage, while guaranteeing access
to the usual and accustomed fishing places, did
not prohibit the state from nondiscriminatory
regulation:
“Nor does it (the treaty) restrain the state
unreasonably, if at all, in the regulation of
the right. It only fixes in the land such ease-
ments as enables the right to be exercised.”
Winans, supra, at 384.
Subsequently in Tulee v. Washington, 315
U.S. 681 (1942), while holding that a treaty In-
dian could not be compelled to pay a general rev-
enue license fee in order to exercise his treaty-
protected right to fish, this court reasserted:
* * * the treaty leaves the state with
power to impose on Indians equally with
others such restrictions of a purely regula-
tory nature concerning the time and manner
of fishing outside the reservation as are nec-
essary for the conservation of fish.
Tulee, supra, at 684.
Nondiscriminatory state regulation of fish-
ing activities, including those by treaty Indians,
was again approved in Puyallup Tribe v. Depart-
ment of Game, 391 U.S. 392 (1968) (Puyallup J):
“The manner of fishing, the size of the take
the restriction of commercial fishing, and
the like may be regulated by the State in the
interest of conservation, provided the regu-
lation meets appropriate standards and does
not discriminate against the Indians.”
Supra, at 398, and
* * * any ultimate findings on the conser-
vation issue must also cover the issue of
equal protection implicit in the phrase “in
common with” * ”
Supra, at 403.
In Puyallup III, supra (footnote 16), this
Court recognized that all citizens of Washington,
both Indian and non-Indian, have fishing rights.
Since Indians and non-Indians have common
rights, it should follow that neither group may
be discriminated against in regulating fishing.
The federal Court’s orders are inconsistent
with the above decisions.'° The district court has
mandated a pattern of regulation which dis-
criminates between Indian and non-Indian net
fishermen, limiting or prohibiting fishing by the
non-Indians while expressly permitting fishing
by Indian fishermen.
As we have shown, this Court has consist-
ently upheld the applicability of the state’s non-
discriminatory regulation to treaty Indian fish-
ing. Yet the “Washington fishery case” orders
remove the Indian fishery harvest from the
state’s jurisdiction. (See Memorandum Order
and Preliminary Injunction, pp. 17-18, entitled
“Removal of Treaty Allocation from State Exer-
cise of Jurisdiction,” (App. 54-57) and paragraph
K prohibiting the application of conservation
measures to Indians where the nontreaty share
decreed by the District Court has been exceeded.
(App. 59).
The United States District Court has also
continued to include within the fish allocation
those fish propagated by the hatchery systems
of the State of Washington. Such inclusion is in
conflict with the concurring opinion in Puyallup
The district court made the following reference to the court’s de-
cision in Puyallup I, supra: “If the seeming nonsequitur be the law, it
certainly is deserving of more specific legal analysis and justifications
than it has ever had in any United States Supreme Court decision.”
United States v. Washington, 384 F.Supp. 312 at 337 (1974).
II, supra, wherein three justices of this Court
clearly indicated that the treaty right does not
extend to hatchery fish. 414 U.S. at 49. It is also
in conflict with the implementation of Puyallup
II in Puyallup III in which the allocation ex-
cluded hatchery fish.
D. The Court of Appeals has sanctioned
a departure from the accepted and
usual course of judicial proceedings.
Based upon the 50% ruling,'! the federal dis-
trict court has adopted extraordinary measures
including:
1. Removing the state from its traditional
role as manager and regulator of its fisheries.
2. Enjoining state courts from proceeding
with any actions filed with them which might af-
fect the federal district court’s implementation of
its treaty interpretation.
3. Enjoining all (nonparty) citizens of the
state from commercial net fishing unless author-
ized by orders of the federal district court. This
approval is granted only through a recorded tele-
phone message. Only treaty Indians are exempt.
4. Interferring in the regulatory system of
an international Commission established by a
treaty between this Nation and Canada (which
treaty also gave the word of this nation to en-
force compliance with IPSFC regulations.)
‘\Characterized by the circuit court as a discretionary determination.
5. Three years after the judgment in the orig-
inal action, the court amended its decree to ex-
pand the case area to apply the same special
Indian allocations to areas which were neither
within the pretrial pleadings nor the post-trial,
but pre-judgment, relief requested.
The number of extraordinary rulings, modi-
fications, and even orders granted without hear-
ing, are too numerous to list. We will, in the in-
terest of brevity, only discuss one of the foregoing
list: removal of the state as the traditional man-
ager of the fishery resource.
The district court adopted a Salmon Man-
agement Plan (App. 61-77) which was appealed
to, but not discussed by, the circuit court of ap-
peals in the Washington fishery case, supra. That
Plan included, but was not limited to (1) requir-
ing state agencies to obtain agreement from the
tribes for fishery enhancement planning includ-
ing where facilities will be constructed and where
fish would be planted from the hatchery pvo-
ram. (App. 68); (2) requiring agreements with
tribes as to escapement goals. This is, fish avail-
able for spawning; (3) providing that where the
court’s allocation is not achieved it is to be made
up in following years; and (4) a previously estab-
lished Fisheries Advisory Board composed of
one representative of the state, one from the
tribes, and the court’s “fishery expert” shall re-
solve disputes on subjects addressed by the plan
(which encompasses nearly all elements of sal-
28
mon management). The order provides ‘No
party may object to the jurisdiction of the board
as to matters addressed by this plan.” (App.
76).
Thus, the court has not only taken control
and management of the salmon resources from
the agency lawfully charged with that function
but has established a nonjudicial body to which
much of that authority has been delegated.
E. International Fisheries Case
The IPSFC (International Fishery) case is
so extraordinary, it deserves separate discus-
sion. The original decision of the district court
and circuit court appeared to recognize that the
IPSFC Convention (50 Stat. 1355), implement-
ing federal statutes (16 USC 776) and IPSFC
regulations all took precedence over any special
rights the Indians might enjoy under the treaties
in question. The district court observed:
* * * this court believes that treaty right
tribes fishing in waters under the pol in
tion of the International Pacific Salmon
Fisheries Commission must comply with
regulations of the Commission.
United States v. Washington, supra, 384 F.Supp.
at 411.
and the circuit court declared:
Congress sufficiently indicated its intent that
all persons, including Indians, be subject to
Commission regulation.
United States v. Washington, supra, 520 F.2d at
690.
ad ie
(iO ia
29
The state petitioners in United States uv.
Washington, supra, (#75-588) indicated to this
Court concern that the federal court actions
would interfere with IPSFC regulation.
In response, the United States assured this
Court that there was no problem with the IPSFC
fishery:
The decision_below presents no issue re-
garding that Convention requiring further
review. Both the district court (384 F.Supp.
at 411) and the court of appeals (Pet. App.
49-50) specifically held that all persons, in-
cluding treaty protected Indians, are subject.
to the regulations of the IPSFC. Thus there
is no question of the decree impinging upon
the authority of the IPSFC.
* * * As we have demonstrated, both
courts below td recognized the
in, gd of IPSFC regulations. If any
subsequent actions interfere with the regu-
lations of the commission they are not sanc-
tioned by the decision under review.
Brief of the United States in Opposition (to peti-
tion for writ of certiorari) in United States v.
Washington, Nos. 75-588, pp. 21-22.
Notwithstanding those assurances, the
United States and some of the tribes moved the
district court for orders establishing special In-
dian fisheries in violation of the then existing
IPSFC regulations and for orders specifically
applying the 50% allocation to the United States’
share of the IPSFC harvest. The relief was
granted, permitting fisheries by Indians on
IPSFC stocks at times and in manners prohib-
30
ited by IPSFC regulations and Indian fisheries
during periods closed by IPSFC regulations.’”
Specific findings and conclusions were entered
that Indians are entitled to 50% of the United
States’ share.!*
The Stevens treaties between the United
States and the various Indian tribes, as in-
terpreted by this Court and the Ninth Circuit
Court of Appeals, preempted State control of
fishing within Washington territorial waters
in Puget Sound, including Fraser River sock-
eye and pink salmon, and made it the su-
reme law of the land that the Indians must
be allowed the o ag rgd to take up to fifty
per cent of the fg that may be legally har-
vested in Washington territorial waters.
Conclusion of Law 63 from the Order proposed
by the United States and signed by the district
court.
This constitutes a reversal of position by the
United States and the district court. It conflicts
with the prior assurances made by the United
States to this Court.
Not only has the district court changed its
decision but in doing so has acted in excess of
12The Indians allowed to fish included those from at least one tribe
without established usual and accustomed fishing areas in IPSFC waters.
\3This allocation did not take into account the factors this court indi-
cated were relevant in Puyallup II, supra. The district court made a find-
ing that Indians would fish 108 vessels and non-Indians had fished 1,466
vessels in IPSFC waters. If the Indians had taken 50% and the run had
been as predicted, the average Indian boat catch would have been nearly
18,000 salmon which would have a value of nearly $100,000. The runs,
however, were smaller than predicted. The Indians did not catch the
share alloted.
31
its jurisdiction in interferring with the affairs
of the International Commission. !4
The district court here was consciously inter-
fering in the decision-making process of the Com-
mission. The court included several stays in a
series of orders to give time to persuade the
IPSFC to change its regulations. The court di-
rected the pet’tioner, Director of Fisheries, in his
capacity as an International Commissioner, to
“promptly take action, whatever seems appro-
priate in the occasion, to press the matter before
the Commission.” (Transcript of 11 July, quoting
the judge.)
Similarly, the court, when ordering that one
tribe be allowed to disregard Commission clos-
ures as implemented by state regulations, de-
layed the entry of the order so the state could ask
the IPSFC to permit such a fishery (TR 6 August,
pp. 130, 133-34). After the IPSFC refused, the
court entered the order (App. 125-27).
The district court’s interference with the
regulations of the IPSFC did have international
See: Z & F Assets Realization Corp. v. Hull, 311 U.S. 470 (1941) wherein
this Court rejected an indirect attempt to interfere with an international
commission created by treaty between the United States and Germany
to rule upon war claims by United States citizens. Justice Black stated:
And the fact that petitions sought to challenge the Commission’s
power by proceedings against the Secretaries of State and the Treas-
ury, and not by direct suit against the Commission, is immaterial. If
petitioners cannot directly attack the Commission in the courts,
neither can they, in the absence of congressional consent, assail
the propriety of its awards through the expedient of suits against
others charged with responsibility for executing the final determi-
nation of the Commission.
Supra, at 491.
32
ramifications.
Two protests to the Secretary of State were
filed by the International Commission (Joint
Exhibit 10, Joint Exhibit 11). An objecting letter
from the government of Canada to the govern-
ment of the United States was also sent. (It was
agreed by the United States that this letter would
be provided as an exhibit. Transcript of 6 August
1975, p. 10-11. It was never provided.)
One state department official advised the
court by affidavit that the State Department had
declined to implement one portion of the court’s
order:
No action was taken * * * with regard
to the further provision pertaining to a five
day fishery, since the Department of State
concluded that provision was contrary to the
United States obligation and policies under
the Salmon Convention in that it was incon-
sistent with the basic regulatory scheme
elaborated by the Commission.
The injunction was then amended to delete
this five-day fishery. However, the conclusion is
inescapable that the order of the district court
was involving that court impermissibly in inter-
national relations and violating United States
obligations.
Additionally Donald L. McKernan, who
headed the United States’ delegation in bilateral
negotiations with Canada as Chief Negotiator,
testified as to possible disruption of the regula-
tory system of the IPSFC (Transcript of 11 July,
1975, p. 136).
es
33
When asked whether such disruption of the
IPSFC could cause problems in the international]
negotiations with Canada (which extended to
all shared fisheries, not just those under the
IPSFC), his answer was “yes.” (Transcript of 11
July 1975, p. 137).
Even if the Indian treaties mandate a special
allocation of fish, the IPSFC treaty and imple-
menting statutes have superseded the require-
ment of such an allocation on fisheries which
are subject to the jurisdiction of the IPSFC.
There is no doubt Congress has that author-
ity. Menominee Tribe v. United States, 391 U.S.
404, 412 (1965); Lone Wolf v. Hitchcock, 187 U.S.
553, 565-67 (1903). The existence of the Indian
treaties were known to Congress when the IPSFC
treaties were approved and the implementing
statutes passed.
The treaty with Canada obligates the United
States to enforce “Commission” regulations
against “every national or inhabitant, vessel or
boat * * * that engages in fishing.” (Con-
vention, Article IX, App. 145). No exception is
provided for Indians. The implementing federal
legislation makes it unlawful for “any person to
engage in fishing for sockeye salmon or pink
salmon in convention waters in violation * * *
of any regulation of the Commission.” (16 USC #
776, App. 160). Again, there is no exemption for
Indians.
34
The IPSFC treaty and implementing stat-
utes were passed nearly forty years before the
federal district court’s determination that the
Indian trety language mandated 50% of the
fish runs.
The interpretation urged here, that treaty
Indians are fully subject to IPSFC regulation
and are not entitled to a special fishery but may
participate pursuant to those nondiscrimina-
tory IPSFC regulations, was the interpretation
of all parties until the actions of the federal dis-
trict court in 1975.
It is necessary to answer the Court of Ap-
peals conclusion that the matters relating to the
IPSFC concern only the 1975 season and there-
fore the appeals are moot:
The 1975 season has now passed and neither
the order of the United States District Court
nor that of the state court has current force.
(International Fisheries case, supra, at 1121.)
(App. 29-33).
These questions are not moot. The important
aspects of the district court’s orders as they re-
late to the IPSFC are still in effect. The decision
that Indians are entitled to 50% of the United
States’ share and the requirement petitioner
Fisheries Director work toward implementation
in his capacity as a United States IPSFC Com-
missioner continues effective. A letter of instruc-
tion was sent from United States State Depart-
ment to the United States Commissioners. That
Sere atenines Bee
35
letter of instructions is reprinted in the Appen-
dix 168-69. It notes United States regulatory rec-
ommendations:
* * * with the aim of accommodating the
United States v. Washington decision re-
garding Indian treaty rights - » * -toe
are instructed to support it at the next Com-
mission meeting and vote for its adoption
into final regulations for 1977.
Further, the tribe allowed a special exemp-
tion from state regulations implementing IPSFC
regulations still claims that exemption. (Other
tribes have now asserted they enjoy the same
exemption.)
The United States Department of Interior
has adopted regulations providing for special
treaty Indian fisheries in IPSFC waters. 25 CFR
256 (B) found in Federal Register, Vol. 43, # 122,
Friday, June 23, 1978.
The express purpose recited therein is to imple-
ment treaty fishing rights “affirmed in United
States v. Washington.”
Clearly the International Fishery decision
continues to be effective, though implementa-
tion has taken different forms from year to year.
36 ; 37
We, therefore, respectfully submit that the
CONCLUSION application for Writ of Certiorari be granted.
The Petitioner State of Washington finds DaTED this 20th day of July, 1978.
itself in the extraordinary position of being con- f
fronted with conflicting decrees by the highest Respectfully submitted,
state appellate court and the lower federal courts SLADE GORTON,
with reference to fishing by treaty Indians. This ee ane
conflict can only be resolved by this Court. EDWARD B. MACKIE,
The lower federal court decisions have, some Depaty Attemey Generel
120 years after the execution of the treaties, con- JAMES JOHNSON,
cluded for the first time that the fishery resource Senior Assistant Attorney General
in the State of Washington is to be divided Attorneys for Petitioner
“equally” between treaty fishermen and non-
treaty fishermen. The implementation of this
extraordinary ruling has been transformed by
the district court to a guarantee of specific
numbers of fish by species and areas for Indian
fishermen.
The implementation of this decision has
had an adverse impact upon the citizens of the
state and the basic authority of the state to
manage and conserve its fishery resources.
The court’s unprecedented expansion of Indian
jurisdiction involving such concepts as self-
regulating tribes beyond the boundaries of the
reservations and the interference with the In-
ternational Fisheries Commission, even indi-
vidually, would justify the exercise of jurisdic-
tion by this Court. The collective impact of these
decisions literally demands review by this Court.
a
38
39
INDEX TO APPENDIX
Page
Puget Sound Gillnetters Assn., et al. v. United States
District Court, et al., 573 F.2d 1123 (9th Cir. April 24,
1978) [Washington Fishery Case] ..................4. l
United States v. State of Washington, Department of
Fisheries, 573 F.2d 1118 (9th Cir. April 24, 1978)
[International Fishery Case]................0c0000e: 29
District Court Orders entered in
United States v. Washington
Memorandum Order & Preliminary Injunction, August 31,
Pe eee cate oie ee ae ane Se 35
Memorandum Adopting Salmon Management Plan, August
EN 4 ECE EMER Ok ns dere ewe ek ree Cees 61
Findings of Fact and Conclusions of Law Re: Enforcement
of 1977 Fisheries Orders, September 27, 1977........ 79
Preliminary Injunction Re: Enforcement, Sept. 27, 1977. 89
Preliminary Injunction Order, October 17, 1977 ........ 93
Preliminary Injunction Staying Thurston County Superior
Cy SE a uss kb ad 6a shee’ 101
Fourth Supplemental Findings of Fact and Conclusions of
Law and Decree re 1975 Fraser River Sockeye and Pink
Salmon Harvest, July 17, 1975 ...........cccccccees 105
Modifications and Additions to Fourth Supplemental
Findings of Fact and Conclusions of Law and Decree and
Injunction Re 1975 Fraser River Sockeye and Pink
Salmon Harvest, August 6, 1975..........ccccceeees 121
Preliminary Injunction Re Swinomish Indian _ Tribal
Community Chinook Fishery in Area Designated West
OR Us bes aa a ee dean ees 125
40
Constitutional Provisions
Page
United States
POU TE obo os 800 000beeddskeweeeees bee 128
PUREED FE ccvecccceevtcccencenseueesseeteeeae 129
Rem Fn wo 00nc00k0seense0 vena eeeeeeee 129
POE, Fo 60c sacs cahvsrtatdivetes ene 130
Amendment XIV...... op veveesineebesesseee ee 131
Treaties
United States
10 Stat. 1132 (Treaty of Medicine Creek) ........... 131
12 Stat. 927 (Treaty of Point Elliott) ............... 132
12 Stat. 933 (Treaty of Point No Point) ............ 132
12 Stat. 939 (Treaty with the Makahs (Treaty of Neah
DOP. cccvccccciccnsdssbucesapeeeesee senna 132
12 Stat. 951 (Treaty with the Yakimas)............. 133
12 Stat. 971 (Treaty with the Quinaielts (Treaty of
| Peet Terr ee eee 133
Convention with Canada 1930 and 1956 Protocol
Amending
50 Stat. 1355, 8 T.LA.S. 3687, 8 U.S.T. 1057.. 135
Statutes
16 USC 776 —
(Sockeye Salmon or Pink Salmon Fish Act of 1947) 159
16 USC 1801, 1811, 1812 —
(Fishery Conservation and Management Act of
SURED sn cwsapeccs0s bs ce6aeetncus nee 162
Washington State
BOLTee PAM cs vo va cccvacccstdeseaebebbasee 167
Miscellaneous
Letter dated March 16, 1977, from Rozanne L. Ridgway
(Department of State) to Donald Moos (Director of
Washington Department of Fisheries) ............... 168
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DOT
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PuGeT SOUND GILLNETTERS ASSOCIATION et al.,
Petitioners,
V.
UNITED STATES DistricT COURT FOR THE WESTERN
DISTRICT OF WASHINGTON,
Respondent,
United States of America et al., Real Parties in
Interest,
COLUMBIA RIVER FISHERMEN’S PROTECTIVE UNION,
Inc., et al.,
Petitioners-Appellants,
V.
UNITED STATES DisTRICT COURT FOR THE DISTRICT OF
OR2GON,
Respondent,
and
United States of America et al., Real Parties in
Interest,
Appellees.
UNITED STATES OF AMERICA et al.,
Plaintiffs-Appellees,
V.
STATE OF WASHINGTON et al.,
Defendants-Appellants.
Nos. 77-3129, 77-3208, 77-3209, 77-3654 and
77-3655.
United States Court of Appeals
Ninth Circuit.
April 24, 1978.
Before GoopWIN, WALLACE, and KENNEDY,
Circuit Judges.
Goopwin, Circuit Judge:
These consolidated appeals are the latest in a
series of efforts by agencies of the State of
Washington and various associations of non-Indian
fish catchers to overturn decisions of the District
Courts of Oregon and of the Western District of
Washington apportioning between treaty Indians
and others the right to take fish. See 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, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976);
Sohappy v. Smith, 302 F.Supp. 899 (D.Or.1969);
United States v. Oregon, 529 F.2d 570 (9th Cir.
1976). The geographic areas coverd by these appeals
are Puget Sound, the Washington coast south to and
including Gray’s Harbor, and the Columbia River.
I BACKGROUND
Litigants reached an agreement concerning the
Columbia River, and that agreement was incorporat-
ed in a final decree of the District Court, Order of
February 28, 1977, United States v. Oregon. That
case retains minor problems of enforcement.
SAV PEAR PDT EDAD
a il ELITE IT re
Agencies of the State of Washington and various
of its constituencies continue to attack the judgment
in United States v. Washington. Accordingly, we will
again set forth the treaty basis of that decision and
reaffirm its validity. The state’s extraordinary
machinations in resisting the decree have forced the
district court to take over a large share of the
management of the state’s fishery in order to enforce
its decrees. Except for some desegregation cases (see
Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert.
denied sub nom. McDonough v. Morgan, 426 U.S.
935, 96 S.Ct. 2649, 49 L.Ed.2d 386 (1976); Morgan
v. McDonough, 540 F.2d 527 (1st Cir. 1976), cert.
denied, 429 U.S. 1042, 97 S.Ct. 743, 50 L.Ed.2d 755
(1977)), the district court has faced the most
concerted official and private efforts to frustrate a
decree of a federal court witnessed in this century.
The challenged orders in this appeal must be
reviewed by this court in the context of events forced
by litigants who offered the court no reasonable
choice.
When Europeans first came to the Northwest,
they found it occupied by many bands of Indians,
who together exercised superficial control over the
entire territory. The Indians knew nothing of English
land tenure, by they were destined to learn.
For most tribes living along Puget Sound, the
Pacific Coast, or a major stream, the yearly runs of
anadromous fish were central to their economies and
their cultures. As settlement from the East increased
during the. 1840’s and 1850’s, the white settlers
created political pressure to limit Indian occupation
to designated lands so that more land would be
available to the settlers for enclosure and exclusive
possession. Under instructions from the federal
government, Governor Isaac Stevens of Washington
Territory negotiated a series of treaties in 1854-55
to achieve settlement goals.
The treaties followed a pattern, the Treaty of
Medicine Creek, 10 Stat. 1132 (1854) being typical.
In article II the Indians reserved to themselves
certain lands for reservations, and in article III the
government further guaranteed them the right to
continue taking fish at their usual and accustomed
sites off the reservation, in common with all citizens
of the Territory. This court has previously construed
these clauses in earlier chapters of this litigation. We
held that article II reserved an exclusive right to fish
on the reservation and that article III established
something analogous to a cotenancy, with the tribes
as one cotenant and all citizens of the Territory (and
later of the state) as the other. United States v.
Washington, 520 F.2d at 685, 690. It is crucial to
remember that these treaties did not grant the tribes
anything; rather, the tribes granted the United States
a vast expanse of land, reserving to themselves
certain interests in it and in its profits a prendre.’
‘This reservation included customary uses outside the area ceded. See
Seufert Brothers Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed.
555 (1919).
ie eens yo.
—
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The negotiations and treaties show that the right to
take fish was to the Indians one of the most
important rights reserved.
The Supreme Court has recently indicated that
tribal sovereignty continues as a necessary part of
Indian law. In McClanahan v. Arizona State Tax
Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d
129 (1973), it overturned a state tax on income
earned by a reservation Indian from reservation
sources. In doing so it noted that tribal sovereignty
provides a backdrop against which treaties and
statutes must be read. The Indian claim to
sovereignty long predates that of the United States
or of any state. Indians on reservations remain a
separate people, exempted from many laws of the
state within whose borders they live. 411 U.S. at
172-73, 93 S.Ct. 1257. In Morton v. Mancari, 417 U.S.
535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), the Court
upheld a hiring preference for Indians in Bureau of
Indian Affairs positions. It noted that the preference
was political, not racial, 417 U.S. at 553 n.24, 94 S.Ct.
2474 given to “members of quasi-sovereign tribal
entities,” 417 U.S. at 554, 94 S.Ct. at 2484. In United
*It is questionable whether Anglo-American concepts of sovereignty existed
in these Indian cultures, or whether the collections of villages Governor Stevens
made for purposes of his negotiations were in fact tribes. The United States
treated them as tribes, however. The villages were then exercising and the tribes
have since exercised what we would consider sovereign powers over their
members and territories. These concepts have become basic to the legal
justification for preserving the tribes as legal and cultural entities, a goal which
the treaties were intended to serve and which Congress has recently reaffirmed.
Indian Self-Determination Act of 1975, Pub.L. 93-638, Title I, 88 Stat. 2203,
2206. We will therefore use these concepts, recognizing that in doing so we
may not be perfectly adapting Western legal concepts to Indian culture.
States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42
L.Ed.2d 706 (1975), the Court upheld the power of
Congress to delegate to an Indian tribe the right to
regulate the sale of liquor on non-Indian land within
an Indian reservation. The Court specifically rejected
the Tenth Circuit’s holding that Indian tribes are
simply voluntary associations of private citizens,
citing Worcester and McClanahan among other
cases. 419 U.S. at 557, 95 S.Ct. 710.
Most recently, the Court held unanimously that
a conviction by a tribal court does not bar federal
prosecution for the same offense, because the tribal
and federal courts are arms of different sovereigns.
“Indian tribes still possess those aspects of
sovereignty not withdrawn by treaty or statute, or
by implication as a necessary result of their
dependent status.” United States v. Wheeler, __
U.S. —, —, 98 S.Ct. 1079, 1086, 54 L.Ed. __
(1978).
II EQUAL PROTECTION
The state and the non-Indian fish catchers argue
that to treat Indian fish catchers differently from
non-Indians in allocating fishing opportunities and
determining fishing regulations is a patent violation
of basic equal protection principles. The Washington
state courts have accepted this argument. See
Washington State Commercial Passenger Fishing
Vessel Association v. Tollefson, 89 Wash.2d 276, 571
P.2d 1373 (1977). Yet the most obvious conclusion
NF Oe Se ee he Oe .
Mh ees
ent
from this background is that “equal protection” is
an issue in this case only as it limits the state’s
regulation of Indian fishing in those areas where the
state has a right to regulate. Comparisons between
the numbers of treaty and nontreaty fishers, or the
quantity of fish each category has an opportunity to
take, are simply irrelevant under the law. The treaty
tribes reserved their preexisting rights to fish, and
they continue, as quasi-sovereign entities, to hold
those reserved rights.
As we pointed out in United States v.
Washington, 520 F.2d at 685, the treaties established
something analogous to a cntenancy in the
off-reservation fishery.’ The treaty fishers derive
their rights from one of the cotenants, the tribes. The
nontreaty fishers derive their rights from the other,
the state as the successor to the United States. The
population-head-count disparity is the unremarkable
result of normal principles of property law applied
to changing numbers within cotenant classes.
‘We refer to the cotenancy analogy only because it is helpful in explaining
the rights of the parties, not because all the rights and incidents of a common
law cotenancy necessarily follow. The shared interest is in a yearly run which
is apportioned on a yearly basis between two parties, each having equal rights
in it. It is this equality of right between two quasi-sovereigns which we
expressed by analogy in the earlier case. Obviously, not all the rules of
cotenancy in land can apply to an interest of the nature of a profit. Another
analogy might have been drawn to the doctrine of equitable apportionment
between states claiming the yearly flow of a common stream. The Supreme
Court has often resolved the conflicting claims of quasi-sovereign states in this
context. Nebraska v. Wyoming, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815
(1945); Wyoming v. Colorado, 259 U.S. 419, 42 S.Ct. 552, .Ed. 999 (1922).
Similar principles might apply here with the addition, o , of the equality
of rights which the treaties guarantee. The primary point is that the state and
the tribes stand in similar positions as holders of quasi-sovereign rights in the
fishery, and that the federal courts are, when necessary, the arbiters of those
rights.
Treaty fishers fish under the regulation of one
quasi-sovereign, nontreaty fishers under the regula-
tion of another. The rights of each sovereign are
reserved or granted in the treaties, as the district
court and this court have authoritatively construed
them. These principles, applied in good faith, should
answer most of the state’s arguments, the problem
is then one of enforcement.
These rights were reserved, not by the
‘ndividuals who happened to be alive in 1854 or 1855,
but by tribes, with which the United States treated
as sovereign entities.? See United States v.
Washington, 520 F.2d at 688. The sovereignty of
Indian tribes was the legal foundation for the
relations between the United States and the Indians
from the origins of this country, even though tribal
sovereignty was viewed as the limited sovereignty of
a domestic dependent nation. Under the Constitu-
tion, only the United States may deal with an Indian
tribe. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.)
1, 17-19 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.)
515, 557-60 (1832). All Indians are now citizens of
the United States, 8 U.S.C. § 1401(a)(2), and the
United States has not made treaties with the tribes
~ gince 1871, 25 U.S.C. §71. As we noted in United
States v. Washington, 520 F.2d at 685, tribal
sovereignty does not fully explain current Indian
status. Yet, as we also noted there, the concept of
tribal sovereignty remains necessary to explain the
extent of the tribes’ reserved rights under the
treaties, which have not been affected by the
changes.
III ENFORCEMENT
A
Enforcement is a problem because the state, its
courts, and the non-Indian fishers have never fully
accepted the principle that treaty rights can be
claimed by a politically impotent minority. Before
1977 the state enforced the district court’s orders
grudgingly at best.‘ The current crisis is the result
of a breakdown in state law enforcement in 1977. The
state agencies had, with well-publicized reluctance,
issued fishing regulations which, if enforced, would
have met the district court’s requirements. The
agencies found, however, that some state prosecutors
refused, again with the vocal approval of their
constituents, to prosecute violations of the regula-
tions in the few instances where the state issued
citations. More important, the Washington Supreme
Court in a recent series of decisions attempted to
strip the state agencies of their power to comply with
the district court’s orders.
In Puget Sound Gillnetters Association v. Moos,
88 Wash.2d 677, 565 P.2d 1151 (1977), and Purse
Seine Vessel Owners Association v. Moos, 88
Wash.2d 799, 567 P.2d 205 (1977), the Court held
certain regulations which the state Department of
‘Judge Burns pointed out this recalcitrance in his concurrence in United
States v. Washington, 520 F.2d 676, 693 (9th Cir. 1975), cert. denied, 423 U.S.
1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976).
Fisheries issued to comply with the district court’s
orders to be beyond the Department’s authority
under state law.’ The Department thereupon
withdrew its regulations and issued new ones which
made no attempt to protect tribal rights in the
fishery. This situation led the district court to cease
its attempts to work through the state government
and, instead, to undertake fishery management
directly. The Court’s enforcement actions are the
special focus of the present appeal.
The tribes have a right to the enforcement of
the treaties. This court has previously upheld the
district court’s construction of those treaties. The
state was a party to that construction and remains
a party now. The state is bound by the previous
decisions.
The district court might have required the state
to comply with its orders despite the conflicting state
court rulings, but a direct confrontation would have
raised serious questions of federalism. In an effort
‘In those cases, and in Washington State Commercial Passenger Fishing
Vessel Association v. Tollefson, 89 Wash.2d 276, 571 P.2d 1373 (1977), the
court construed the treaties as simply guaranteeing tribal Indians equal
_ treatment with other citizens and stated that the district court’s actions had
created a class based on an impermissible racial classification. We reject these
positions for the reasons given above and in Justices Horowitz’ and Utter’s
dissents. We assume that the Washington court has unwittingly misconstrued
the basic concepts of Indian law and failed to understand a long line of Supreme
Court decisions beginning with United States v. Winans, 198 U.S. 371, 25 S.Ct.
662, 49 L.Ed. 1089 (1905).
This misconstruction of Indian law was one basis for the Washington
court’s denial of state authority to allocate fish between treaty and nontreaty
fishers. The state court thought that such an allocation would violate equal
protection, something the state could not be required to do. We question
whetk.« the court would continue to deny state agencies the authority to
allocate under a correct view of tribal status and rights.
to minimize friction in a delicate state-federal
situation without denying the tribes the rights they
had reserved in the treaties and vindicated in court,
the district court entered into the direct management
of the fishery. Unless or until Congress acts to
harmonize state and treaty interests in the fishery,
the default of state government leaves the district
court as the only instrument available to vindicate
the treaty rights.
The pertinent questions, therefore, are not
whether the court was right or wrong in 1974, but
whether the court’s actions are reasonable now. A
subsidiary question is whether the court may enforce
its orders against “nonparty” fishers directly.
B
We held in United States v. Washington, 520
F.2d at 687-90, that the district court had discretion
in its allocation of the fishery; we now extend that
holding to recognize its broad discretion in managing
the fishery. Further, none of the district court’s
actions now before us constitutes an abuse of that
discretion.
The district court’s orders set forth an allocation
of fishing opportunity’ between the treaty and
nontreaty fishers intended, for 1977 only, to provide
*The appellants argue that the district court attempted to transfer title
in the fish to the tribes although fish in their wild state are incapable of being
owned. This was not the district court’s order. Considered in light of the record
as a whole, the orders allocate only the opportunity to take fish. That allocation
can best be expressed and enforced, of course, by numbers of fish taken.
A—12
nontreaty fishers with 55% of the total opportunity
and treaty fishers with 45%. Because the district
court included the amount taken in close-in ocean
waters in the estimate of the total opportunity
available to nontreaty fishers, the allocations
generally pushed upward the opportunity in Puget
Sound and the coastal streams for treaty fishers.’
The difference in technology between white and
Indian fishers is explained in United States ov.
Washington, and in the voluminous record here. The
district court made its allocation orders upon the
best technical advice available. It made its orders
binding upon fishers’ associations and upon all
persons fishing under the authority of the State of
Washington.
We have noted that the appellants argue that
the district court’s actions violate equal protection.
The allocation is not an allocation among an
indistinguishable mass of citizens but between two
groups of persons each claiming undivided half-
interests in a quasi-cotenancy. Each of the co-owners,
the state and the tribes, is a quasi-sovereign, and the
distinction between their members is thus political
rather than racial. Ethnic origin is relevant only to
the degree it happens to define tribal, and therefore
political, status. An ethnic Indian who is not a
member of a tribe with reserved fishing rights is in
the same position with respect to Washington fish
’There is a small tribal ocean fishery, and the parties do not agree whether
it is included in the tribal share. If it is not now included, we presume the
district court would include it on a proper showing.
Se ee ee
A—13
and game laws as_ any other citizen of the state.
We find no abuse of discretion in the district
court’s orders allocating the opportunity to take fish.
The circumstances compelled the court to intervene
in fisheries management, and the state does not
appear to quarrel seriously with the _ specific
allocations.’ Indeed, we do not see how, given the
state’s inability or unwillingness to act, the district
court could have protected tribal rights without
making orders allocating fish in some manner. The
numbers question is one of degree, not one of
principle. Fish reach the tribal fishery after passing
through the areas of heaviest nontribal fishing. The
technology of commercial salmon fishing favors the
nontribal fisher. If the nontribal fishery were not
limited, the tribal fishery would never have the
opportunity to take its full share, particularly in light
of the need to provide an escapement of fish
sufficient to preserve the run. Preserving the tribal
opportunity requires limiting the nontribal
opportunity.’ In restating this obvious truth, we are
‘The appellants do question the district court’s limitation only of
commercial fishing. Such a limitation may be the most practical way to enforce
the district court’s orders. The state can always propose limitations effective
against both sport and commercial fishers if it can give reasonable assurances
that such limitations would be enforceable. If the state were able and willing
to regulate its fishery in a way consistent with the district court's orders, of
course, the sport/commercial fishery issue would be entirely a state concern
so long as tribal fishers had an opportunity to take their treaty shares.
*Appellants urge that the treaties are not self-executing but require
Congressional action to be effective. The treaties specifically reserved rights
to the tribes and gave federal guarantees of those rights; we do not know what
more would be necessary to make the treaties effective and enforceable in
federal court as the supreme law of the land. See United States v. Washington,
520 F.2d at 684.
A—14
not unmindful of the equities that lie on the side of
the State of Washington. Its hatcheries help produce
fish that will be caught by Indians as well as by
non-Indians. But these equities call for state, federal,
and tribal cooperation. They do not justify an
attitude of total intransigence.
IV GRAY’S HARBOR
Because of uncertainty over whether the
Quinault tribe would continue as a plaintiff in the
earlier litigation, the original pretrial order defined
the case area to include only coastal streams north
of the Gray’s Harbor watershed. This area includes
the Quinault reservation and several off-reservation
streams which are usual and accustomed locations for
Quinault fishers. There was evidence at the trial
concerning Quinault fishing in Gray’s Harbor as well
as within the case area. The court found that
Quinault Indians had important fisheries, shared
with other tribes, in Gray’s Harbor and _ its
tributaries, although it did not specifically find them
to be usual and accustomed fishing places. 384
F.Supp. at 374-75. In 1974, in response to a motion
by the state, the court held that the Quinault tribe
had usual and accustomed fishing places in the
Gray’s Harbor area and that nothing in its previous
decisions prevented them from using those places.
The state filed a notice of appeal from this ruling,
but the appeal apparently lapsed for want of
prosecution.
+ Bin tre taletee »
A—15
Since the district court’s original decision the
Quinault tribe has been «-ctively developing its Gray’s
Harbor fishery, both by increasing its fishing
capacity and by managing the run to produce more
fish. The state’s actions in response to the state court
decisions threatened the continuance of this Indian
fishery, and the district court’s order and injunction
of August 10, 1977, as interpreted on August 12,
excluded Gray’s Harbor fishing from its protection.
In response to this situation, the Quinault tribe, with
the support of the United States, asked the district
court to extend the case area to cover Gray’s Harbor.
The court agreed to the request. After a series of
hearings the court allocated the opportunity to take
fish between the treaty and nontreaty fishers in a
fashion similar to its other allocations.
One question on appeal is whether the district
court had the authority to expand the case area
beyond that defined in the pretrial order and in its
original decree; Gray’s Harbor was included in the
original complaint. The United States argues that the
district court simply extended its decree, without
modification, to cover a new area. We cannot agree
with this statement. In its conclusion of law number
7, 384 F.Supp at 400, the court explicitly excluded
Gray’s Harbor from the case area. To change the case
area requires changing this conclusion of law. Since
the decree depends on the conclusions of law, such
a change would be a modification of the decree.
The state suggests that the tribe’s request may
A—16
be a motion to modify the decree under Fed.R.Civ.P.
60(b). Rule 60(b), however, deals with relief from
judgments, not modification at the prevailing party’s
request to extend the judgment’s scope.
The best interpretation of the district court’s
order is that it is a supplemental decree based on
a modification of the pretrial order to conform to the
evidence presented at the trial. Under Fed.R.Civ.P.
15(b), the pleadings may be amended, even after
judgment, to conform to the evidence. The same
standard should be applied to the modification of a
pretrial order under Rule 16 in these circumstances.
3 Moore’s Federal Practice 915.13[1]. We have
previously upheld a district judge who applied Rule
15(b) standards to amend a pretrial order to conform
to the proof, Gsell v. Adams, 316 F.Supp. 394
(D.Or.1969), aff'd, 431 F.2d 1204 (9th Cir. 1970), and
one whose holding was based on a theory which had
evidentiary support and was argued but which was
not in the pleadings or the pretrial order, Dering v.
Williams, 378 F.2d 417 (9th Cir. 1967).” Here the
parties tried the issue of Quinault off-reservation
- fishing without objection. The trial court found that
Quinault Indians traditionally used Gray’s Harbor
and its watershed for their fishing; its failure to use
‘Other circuits have reached similar conclusions. In Monod v. Futura, Inc.,
415 F.2d 1170 (10th Cir. 1969), the court in dictum stated that Rule 15(b)
standards apply to a postjudgment amendment of a pretrial order if the issue
has been tried without objection. The Sixth Circuit agrees, if the parties
understood that the evidence was directed to the unpleaded issue. MBI Motor
Company, Inc. v. Lotus/East, Inc., 506 F.2d 709 (6th Cir. 1974). The Fifth
Circuit points out that in these circumstances allowing the amendment is
mandatory. Wallin v. Fuller, 476 F.2d 1204 (5th Cir. 1973).
COME Rx creey se rr EADIE a wo
A—17
the treaty words “usual and accustomed fishing
places” was the result of the exclusion of Gray’s
Harbor from the case area of the original decree.
When the state asked the court to limit Quinault
fishing in Gray’s Harbor, the court specifically found
that the Quinault tribe had usual and accustomed
locations there; the state failed to pursue its appeal
from this finding."
In the light of these circumstances, we will treat
the court’s order expanding the case area as a
supplemental decree based on an implied modifica-
tion of the pretrial order to conform it to the
evidence actually presented.’? (The court retained
continuing jurisdiction to enter further decrees.) As
a supplemental decree, the order is appropriate.
Some action was necessary to protect Quinault treaty
rights in Gray’s Harbor. The alternative to the
supplemental decree would have been to bring a
separate action, which the court would undoubtedly
have consolidated with this action. The evidence and
parties were such that the state would probably have
been collaterally estopped to deny most of the
necessary facts; the court could certainly have issued
a temporary restraining order or preliminary
“The fact that Gray’s Harbor is outside the area ceded is irrelevant if
Quinault Indians customarily fished there. Seufert Brothers Company v.
United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555 (1919).
No one suggests a need for the trial court to go back and amend the
pretrial order if we can say on appeal that it would have been justified in doing
so. Dering v. Williams, 378 F.2d 417 (9th Cir. 1967). An appellate court may
uphold a judgment on any theory which finds support on the record even though
the lower court relied upon a wrong ground or gave a wrong reason. Jurinko
v. Edwin L. Wiegand Company, 477 F.2d 1038 (3d Cir.), vacated on other
grounds, 414 U.S. 970, 94 S.Ct. 293, 38 L.Ed.2d 214 (1973).
A—18
injunction with little extra delay. The court did hold
factual hearings before making its allocations of
fishing opportunity. The only result of requiring a
separate action would have been to add further
complexity to an already complex case.’
V BINDING NONPARTIES
Several of the district court’s orders were
directed to individual fishers and to fishers’
associations, although these persons and associations
were not parties to the litigation. The fishers argue
that the court was therefore without jurisdiction over
them. The United States suggests several theories
which would support the district court’s actions.
Without ruling on the other theories, we agree that
the fishers are bound because they are in privity with
the state, which is a party. Wild animals and fish
belong to the people of a state as a whole in their
sovereign capacity, and the state may regulate the
manner of their taking or prohibit it entirely. Geer
v. Connecticut, 161 U.S. 519, 527-30, 16 S.Ct. 600,
40 L.Ed. 793 (1896)."*
“The state’s only objection to the specific allocations seems to be based
on the equal protection argument which we rejected above. We thus have no
occasion to decide whether the allocations were within the district court’s
discretion.
“Douglas v. Seacoast Products, Inc. 431 U.S. 265, 284-85, 97 S.Ct. 1740,
52 L.Ed.2d 304 (1977), simply holds that a state does not have title to its fish
to the extent that it can give its citizens rights superior to those of citizens
of other states who hold a federal fishing license. This holding does not deny
the state’s substantial interest in fish or that its claim to them, as a sovereign,
represents the claim of all its citizens. See Justice Rehnquist’s opinion in
Douglas, 431 U.S. at 287-88, 97 S.Ct. 1740.
3
A—19
Both Oregon and Washington hold that fish
within their borders, so far as title can be asserted,
belong to the state in its sovereign capacity in trust
for its people. Anthony v. Veatch, 189 Or. 462,
474-75, 486-87, 220 P.2d 493, 498-99, 503-04,
rehearing denied, 189 Or. 504, 221 P.2d 575 (1950);
Columbia River Fishermen’s Protective Union v.
City of St. Helens, 160 Or. 654, 661, 87 P.2d 195,
198 (1939); Monroe v. Withycombe, 84 Or. 328,
334-35, 165 P. 227, 229 (1917); Washington Kelpers
Association v. State, 81 Wash.2d 410, 414-415, 502
P.2d 1170, 1172-73 (1972), cert. denied, 411 U.S. 982,
93 S.Ct. 2274, 36 L.Ed.2d 959 (1973); State ex rel.
Bacich v. Huse, 187 Wash. 75, 79-80, 59 P.2d 1101,
1103-04 (1936). The Washington Supreme Court has
recently specifically held that fishers have no private
property rights in taking salmon. “In regulating the
fisheries, the state is merely enacting legislation
concerning its own property and prescribing the
methods which may be used in acquiring it by private
persons.”” Washington Kelpers Association v. State,
81 Wash. at 415, 502 P.2d at 1173. While the quoted
statement of state ownership may be too strong, it
shows that under Washington law the citizen’s right
to take fish is purely derivative of the state’s power
to regulate rights in the fish. The fishers’ 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 it is a party.
City of Tacoma v. Taxpayers of Tacoma, 357 U.S.
320, 340-41, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958);
Wyoming v. Colorado, 286 U.S. 494, 506-09, 52 S.Ct.
621, 76 L.Ed. 1245 (1932).'* This being the case, the
district court had authority to act against the fishers
directly when it appeared that the state was unable
to do so. Since the fishers are bound by the district
court’s actions, they may not collaterally attack them
now, and they are subject to penalties for contempt
if they have actual knowledge of the court’s orders
and violate them.'* Any complaints the fishers may
have concerning the state’s representation of their
interests are matters between them and the state.
Indeed, much of the difficulty in this case is the
direct result of the pressure these same fishers have
brought to bear upon the state government.
The district court’s injunction against state
court action was both necessary and proper. The
state trial court sought to require the Department
of Fisheries to authorize a harvest of fish without
The United States and the tribes cite Wyoming v. Colorado and several
other water law cases in their brief. We agree with them that this is the most
nearly analogous area of the law. States litigate their quasi-sovereign rights
to water, and appropriators under the states’ laws are bound by those decisions
without being parties. Nebraska v. Wyoming, 295 U.S. 40, 43, 55 S.Ct. 568,
79 L.Ed. 1289 (1935). Washington's fishers are its privies in litigation over the
state’s quasi-sovereign right to its fish in the same way that Wyoming’s
appropriators are its privies in litigation over the state’s quasi-sovereign right
to water.
“The appellants make a number of technical attacks on the injunctions.
We find them to be without merit. In the context of all the proceedings in
this case, the state and ‘the fishers knew what was being enjoined. The use
of a telephone hot line for daily information on fisheries openings and closings
was appropriate and may have been the only practical way to get the
information to all the fishers affected by the court’s orders.
" _—
PTT se Se ee, ee
— * SRN AOUI OEMS =
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regard to tribal rights or the district court’s orders.
This action went beyond the Washington Supreme
Court’s holding that the Department was without
authority to obey the district court’s orders; instead,
it required a direct violation of them. The normal
requirements for injunctive relief were clearly
present. Washington’s reliance on 28 U.S.C. § 2283,
which limits injunctions of state court proceedings,
is misplaced. Section 2283 does not apply when the
United States requests the injunction. Leiter
Minerals, Inc. v. United States, 352 U.S. 220, 224-26,
77 S.Ct. 287, 1 L.Ed.2d 267 (1957). Nor should the
district court have waited for the state system to
resulve questions of state law; none were relevant. As
a party to this action, the state was bound not to
interfere with the district court’s enforcement of its
decree, and any state law to the contrary would fall
under the Supremacy Clause. U.S.Const. art. VI, cl.
2.
VI COLUMBIA RIVER
A few issues concerning the Columbia River case
deserve comment. The agreement reached by all the
parties in early 1977 is a decree of the District Court
of Oregon. No party has raised any questions in the
district court concerning the State of Washington’s
authority to enter into the agreement and consent
to the decree; the state is therefore bound by it.
Under the principles discussed above, the fishers
A—22
from both sides of the river, Oregon and Washington,
are bound by the decree binding the states, and the
district court had authority to hold violators with
actual knowledge in contempt.
The district court’s jurisdiction extends to the
entire Columbia River, not simply to the Oregon side.
Oregon Admission Act of February 14, 1859, § 1, 11
Stat. 383; The Annie M. Smull, 1 Fed.Cas. 983 (No.
423) (D.Or.1872). Nielsen v. Oregon, 212 U.S. 315,
29 S.Ct. 383, 53 L.Ed. 528 (1909), simply holds that
Oregon may not enforce its regulatory laws on the
Washington side. It does not question the power of
the district court to enforce federal law over the
entire river.
VII CONCLUSION
We do not entertain the illusion that this is the
last appeal we will see in this case. The issues
involved are too volatile and raise too many emotions
for a mere statement of the law to resolve them. On
the other hand, neither this court nor the district
court has any desire to be a permanent fish master
in Washington waters. It is to be hoped that the
parties can reach an agreement, as they did in the
Oregon case, and that Washington law will be
changed to allow the state to carry it out. Until the
state decides to cooperate, the district court will have
to continue protecting the tribes’ rights. The state
and the fishers hold the key to lifting federal judicial
interference with their fish-management pre-
rogatives.
In Nos. 77-3208 and 77-3129, the applications for
writs of mandamus are dismissed.
In Nos. 77-3209, 77-3654, and 177-3655, the
judgments are affirmed.
The cases are remanded so that the district court
may retain continuing jurisdiction.
KENNEDY, Circuit Judge, concurring:
The domensions of the state’s resistance to the
decrees in these cases are, in my view, over-stated
by the opinion for the court, but I fully agree that
by its policy with respect to this litigation the state
has unduly complicated the issues without advancing
its own cause. I agree further that an apportionment
of fishing rights half to the treaty Indians and half
to all other fishermen is binding on this panel.
United States v. Washington, 520 F.2d 676 (9th Cir.
1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47
L.Ed.2d 97 (1976). However, the court undertakes to
restate the rationale for the apportionment rule of
cur earlier decision, and I find it necessary to suggest
that the explanation of this critical point remains
somewhat obscure.
The prior decision of this court and the opinion
for the court on this appeal rely on an analogy to
a cotenancy or to a “quasi-cotenancy” to rationalize
the rule of even apportionment. The principles of a
cotenancy apply to the legal relation among parties
who share a right of possession in real or personal
property.’ But the parties to this dispute claim rights
of access and exploitation in a wildlife resource of
fluctuating and uncertain extent. These rights do not
depend upon possession, or even upon ownership, of
the wildlife itself. The cotenancy analogy would be
of dubious relevance even in an era when the supply
of fish exceeded the demands of the fishing
population.’ Certainly it is inadequate to resolve the
present conflict between treaty rights and asserted
state authority to conserve and allocate a fishery that
cannot sustain the full demands of all the parties to
this litigation. A cotenant, absent acts of waste or
ouster, has the right to possess and use the entire
property.’ Accordingly, serious application of the
“For indeed tenancies in common differ in nothing from sole estates but
merely in the blending and unity of possession.” 2 W. Blackstone,
Commentaries * 180.
*The term “tenants in common” was used in an early case to describe the
rights of state citizens to the ownership of New Jersey oyster beds. Corfield
v. Coryell, 6 Fed.Cas. 546, 552 (C.C.E.D.Pa.1823). The phrase, however, was
used solely to explain the court’s holding that state citizens collectively held
one hundred percent of the rights to the shellfish to the exclusion of noncitizens,
rather than as a point of departure for explaining a method of division.
9 American Law of Property § 6.13, at 52-53 (A. J. Casner ed. 1952); R.
Powell & P. Rohan, Powell on Real Property 1 603 (1 vol. ed. 1968); H. Tiffany,
The Law of Real Property § 199 (3d ed. 1970).
At common law, property rules pertaining to ouster and waste insured that
cotenants shared finite resources fairly, but to apply those rules to effect an
allocation of the parties’ rights here would stretch an already attenuated
analogy to the breaking point. Moreover, there is substantial doubt that the
apportionment theory of this case follows from those rules.
The standards which define waste for which a life tenant or tenant for
may recover are not necessarily applicable as between cotenants. The
English rule is that, since a cotenant of a fee simple estate has the right to
enjoy and use the common property in any reasonable way, the usual and
ordinary use of the property by an owner in severalty is not waste. 2 American
Law of Property, supra § 6.15, at 64; 2 W. Walsh, Commentaries on the Law
of Real Property § 131, at 69 (1947). Thus, any cotenant may cut trees that
are mature and fit for cutting, Martyn v. Knowllys, 101 Eng.Rep. 1313
(K.B.1799), and may develop and operate mining land, Job v. Potton, 20 Eq.
84 (1875), without liability for waste. In the United States, while it is clear
analogy might permit a fishing group to take all the
fish it has the capacity to catch, a result contrary
to the one we affirmed in the principal case.‘
that acts which amount to destructive permanent damage to the common
property are held to constitute waste, E. Hopkins, Handbook on the Law of
Real Property § 214, at 342 (1896); 2 W. Walsh, supra § 131, at 72, some cases
have followed the English rule allowing the cutting and sale of timber, Hihn
v. Peck, 18 Cal. 641 (1861); Buchanan v. Jencks, 38 R.I. 443, 96 A. 307 (1916);
Williams v. Bruton, 133 S.C. 395, 131 S.E. 18 (1925); McDodrill v. Pardee &
Curtin Lumber Co., 40 W.Va. 564, 21 S.E. 878 (1895), and the operation of
mines, quarries, and oil wells, Prairie Oil & Gas Co. v. Allen, 2 F.2d 566 (8th
Cir. 1924); Cascaden v. Dunbar, 191 F. 471 (9th Cir. 1911); McCord v. Oakland
Quicksilver Mining Co., 64 Cal. 134, 27 P. 863 (1883); Payne v. Callahan, 37
Cal.App.2d 503, 99 P.2d 1050 (1940), while others have held that the cutting
and sale of timber, Fitzhugh v. Norwood, 153 Ark. 412, 241 S.W. 8 (1922);
Emmons v. Evans, 178 Ky. 180, 198 S.W. 900 (1917), or the development or
operation of mines or oil wells, Clark v. Whitfield, 218 Ala. 593, 119 So. 631
(1929); Abbey v. Wheeler, 170 N.Y. 122, 62 N.E. 1074 (1902); McNeely v. South
Penn Oil Co. 58 W.Va. 438, 52 S.E. 480 (1905), constitues waste. In cases
following the latter rule, courts have tended to call the action one for waste
but to hold the defendant merely to a duty to account for the net proceeds
from the operations rather than to impose the usual penalties, such as treble
damages, for waste. See generally cases cited above and 2 American Law of
Property, supra § 6.15; 2 W. Walsh, supra § 131.
Injunctive relief in an action for waste by one cotenant against another
is granted only for waste which is “of a malicious character, or so unusual or
unreasonable as to constitute a wanton destruction of the estate.” Mott v.
Underwood, 148 N.Y. 463, 42 N.E. 1048, 1050 (1896); see McCord v. Oakland
Quickziiver Mining Co., 64 Cal. 134, 27 P. 863 (1883); R. Powell & P. Rohan,
supra % 647, at 695.
With reference to ouster, a tenant who excludes his cotenants from the
commonly held property by adverse possession is guilty of an ouster, and an
action in ejectment may be brought by a dispossessed tenant. J. Cribbet,
Principles of the Law of Property 104 (2d ed. 1975). “(T]he ousting tenant’s
possession must be exclusive, for mere possession and use of the entire property
by one cotenant is not an ouster, nor is his possession adverse, so long as the
other cotenants remain voluntarily out of possession, and are not kept out of
possession by the acts of the possessor-tenant.” 2 American Law of Property,
supra § 6.13, at 52-54 (footnotes omitted).
‘While courts will not interfere by way of injunction with cotenants’
exercise of their rights to use and enjoyment of the cotenancy even when one
cotenant has committed waste, see note 3 supra, an action for accounting for
rents and profits between cotenants may be available when one cotenant has
taken certain advantages from the property. Even when a cotenant’s use does
not constitute waste or ouster, he is required to account to his cotenants for
their proportionate share of the net amount received from the cutting and
selling of timber or the operation of mines or oil wells. Prairie Oil & Gas Co.
v. Allen, 2 F.2d 566 (8th Cir. 1924) (oil); Cascaden v. Dunbar, 191 F. 471 (9th
Cir. 1911) (gold mining); Buchanan v. Jencks, 38 R.I. 443, 96 A. 307 (1916)
(timber); see Martyn v. Knowllys, 101 Eng.Rep. 1313 (K.B.1799). However, a
Most importantly, the concept of a cotenancy
does not help the court determine what share of the
disputed rights should be allocated to each of the
parties. By relying so heavily upon the theory, the
court seems to imply that an even apportionment
follows from creation of a cotenancy; but, of course,
it does not. Cotenancy is not synonymous with
entitlement to equal shares.’ Nor does the right of
cotenant is not required to account for crops grown and harvested by him.
2 American Law of Property, supra note 3, § 6.14, at 60; see, e.g., Black v.
Black, 91 Cal.App.2d 328, 204 P.2d 950 (1949); Le Barron v. Babcock, 122 N.Y.
153, 25 N.E. 253 (1890). The distinction seems to be that a cotenant need not
account for profits from a use of the cotenancy which does not reduce the
permanent value of the property. C/. 3 B. Witkin, Summary of California Law
§ 216, at 1948 (8th ed. 1973), suggesting that because of the possibility of
exhausting the resources, the rule of accounting is a special rule applying only
to oil and mineral rights. In Mott v. Underwood, 148 N.Y. 463, 42 N.E. 1048
(1896), the court assumed that a cotenant who planted oysters in a commonly
held oyster bed could prevent his cotenants from interfering with the crop,
though no cotenant could maintain an action for trespass or conversion against
his cotenant for taking natural oysters from the land held in common. That
case suggests that oysters, at least, might be treated in a manner similar to
crops for purposes of an accounting. To the extent that a run of anadromous
fish is capable of self-perpetuation, that is, up to the point where fishing activity
reduces the quantity of fish in future runs, perhaps each cotenant should be
allowed to take free from a duty to account.
Another factor in the equitable equation is that the State of Washington
operates salmon hatcheries. In an action for an accounting, a cotenant who
makes improvements on the property generally may not claim a credit for such
expenditures. 2 American Law of Property, supra note 3, § 6.18, at 81. In an
action for partition, however, a cotenant who has made an improvement is
awarded any additional amount which the property might bring as a result
of the improvement. Jd. at 83; IV S. Symons, Pomeroy’s Equity Jurisprudence
§ 1389, at 1018 (5th ed. 1941). Apparently neither the district court nor this
court has considered whether the state’s operation of hatcheries should have
an effect on apportionment of the fish. Cf. Department of Game v. Puyallup
Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (1973) (Puyallup IJ) (reserving
the question of whether the catch of steelhead that was developed from the
state hatchery program could be taken into consideration in allocating the
yearly catch between treaty Indians and sport fishermen).
Again, the cotenancy analogy, if taken seriously with reference to the rule
of even apportionment, creates more problems than it solves.
‘Each tenant in common may have a share greater or smaller than the
shares of the others. 2 American Law of Property, supra note 3, § 6.5, at 19.
If the shares are not fixed in the instrument creating the cotenancy it may
be presumed that the cotenants take in equal shares, but an intent that they
hold different fractional shares may be established by the circumstances. /d.
at 19-20; E. Hopkins, supra note 3, § 209, at 336.
a cotenant to partition provide guidance for an
equitable division of the fish. Effective use of that
remedy presupposes a method of determining the
percentage interests of the parties, but that is
precisely the question to be answered in the case.
By using the cotenancy theory to explain the
critical ruling on apportionment, the court tends to
mask the most difficult problems of this litigation:
definition of the rights recognized by the treaties,
reconciliation of those rights with the state’s
legitimate interest in conservation,’ and declaration
of the parameters of the state’s authority to protect
its interest by appropriate regulation. These are the
issues that must be resolved if the district court is
ever to return the task of supervising the fishery to
the state.
Indian treaties are not second-class agreements,
and rights declared by them may not be whittled
down year by year as the state asserts a need to
exercise its regulatory authority. The state and,
absent its cooperation, the federal courts, must
protect the fishing resource in a manner that respects
the rights of the treaty parties. The boundaries of
the state’s authority and any rule of apportionment
must therefore be drawn with precise reference to the
treaty understandings. The district court undertook
to explain those understandings in its original
decision, and proper review of its ruling requires a
‘See Puyallup Tribe v. Department of Game, 391 U.S. 392, 398, 88 S.Ct.
1725, 20 L.Ed.2d 689 (1968) (Puyallup J).
like analysis. No doubt it would be correct to
determine that the Indian tribes retained by treaty
the right to fish for subsistence and ceremonial
purposes and the right to a fair opportunity to
compete in the recreational and commercial fisheries.
But it has not been clearly demonstrated that the
rule of fifty percent apportionment is a necessary and
proper implementation of those treaty rights.
I recognize that the opinion of the court does
not advocate strict adherence to the technical rules
of common law cotenancy as a means of resolving this
case. The defects of the analogy, however, should be
noted specifically, since alternative justifications for
the apportionment rule have not yet been fully
discussed. This panel is bound by United States v.
Washington, supra, and thus I concur in today’s
judgment. However, I would not attempt to restate
or explain that decision by means of an inappropriate
analogy. We do not sustain the dignity of the treaties
in question by deriving an apportionment rule from
a hesitant reference to property concepts that are
unrelated to the rights asserted by the parties.
Wattace, Circuit Judge, concurring:
While I sympathetically agree with Judge
Kennedy’s statement that “it has not been clearly
demonstrated that the rule of fifty percent
apportionment is a necessary and proper implemen-
tation of [the Indians’] treaty rights,” I am compelled
to join with Judge Goodwin based upon our prior
decision in United States v. Washington, 520 F.2d
676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 96
S.Ct. 877, 47 L.Ed.2d 97 (1976).
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
MaKAH TRIBE, LOWER ELWHA BAND OF CLALLAM
TRIBE, PorT GAMBLE BAND OF CLALLAM TRIBE,
SUQUAMISH TRIBE, LUMMI TRIBE, NOOKSACK TRIBE
and SWINOMISH INDIAN TRIBAL COMMUNITY,
Intervenors-Appellees,
Vv.
STATE OF WASHINGTON, DEPARTMENT OF FISHERIES
and DonaLp W. Moos, its Director,
Defendants-Appellants.
Nos. 75-2835 and 76-1042.
United States Court of Appeals,
Ninth Circuit.
April 24, 1978.
Before CHAMBERS and KENNEDY, Circuit Judges,
and JAMESON,* District Judge.
KENNEDY, Circuit Judge:
In the continuing litigation to implement and
enforce the decrees we affirmed in United States v.
Washington 520 F.2d 676 (9th Cir. 1975), cert.
denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d
*Honorable William J. Jameson, Senior United States District Judge for
the District of Montana, sitting by designation.
A—30
(1976), the district court issued certain injunctions
against the State of Washington to enforce an
allocation of fishing rights between treaty Indians
and other fishermen during the 1975 salmon fishing
season. The State of Washington challenges the
injunctions on this appeal. We have determined the
appeal should be dismissed as moot.
The first injunctive order in question directed
the State of Washington and its Department of
Fisheries to adopt certain regulations to implement
and enforce directives of the 1975 International
Pacific Salmon Fisheries Commission (“IPSFC” or
“Commission”) pertaining to sockeye and pink
salmon fishing in United States waters.’ Since the
Commission promulgates fishing regulations on a
yearly basis, the 1975 Commission directives are now
fully superseded by other Commission orders. If
there were a likelihood that the district court would
require the state to implement Commission
regulations for subsequent seasons, the legal
questions presented here might be ones “capable of
repetition, yet evading review,” and thus amenable
to adjudication notwithstanding their moot character
in this case. Southern Pacijic Terminal Co. v.
Interstate Commerce Commission, 219 U.S. 498, 515,
'The IPSFC was created by the 1937 Convention between Canada and the
United States to coordinate management of sockeye and pink salmon in the
Fraser River system. 50 Stat. 1355 (1937). The Commission, composed of three
Arerican and three Canadian members, is authorized to issue regulations for
supervising the fishery. These regulations, if approved by the respective
countries, are ordinarily enforced in the United States through the cooperative
efforts of federal and state agencies. 16 U.S.C. § 776d(a)-(b).
31 S.Ct. 279, 55 L.Ed. 310 (1911); see Roe v. Wade,
410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147
(1973). That, however, is not the position here.
After the 1975 season, it became unnecessary to
utilize state regulations to accommodate the
Commission directives and the court decree. The
United States has taken steps to remove treaty
Indians from the jurisdiction of the Commission and
regulates treaty Indian fishing solely through the
Bureau of Indian Affairs. The Commission regula-
tions are enforced against nontreaty fishermen by the
National Oceanic and Atmospheric Administration
through its subagency the National Marine Fisheries
Service and by the United States Coast Guard. The
1975 injunction which required the state to adopt
regulations is not, therefore, likely to be reissued for
later years.
Appellant argues that, even if repetition of this
injunction is unlikely, two of the legal premises relied
on by the district court are of continuing importance
in this litigation and should be addressed here. These
questions are whether or not the Washington
Department of Fisheries is required to adopt and
enforce fishing regulations in a manner designed to
give treaty Indians the opportunity to catch fifty
percent of the available fish, and whether this court’s
holding in United States v. Washington, supra,
dictates that any fifty percent allocation must apply —
to waters under the jurisdiction of the IPSFC.
Questions regarding the nature and extent of the
rights of treaty Indians to an allocation of the pink
and sockeye salmon in IPSFC waters should not be
discussed in a hypothetical context. Furthermore, the
question of a percentage allocation is presented in
United States v. Washington, 573 F.2d 1123 (9th Cir.
1978) (Nos. 77-3654 & 77-3655, filed April 24, 1978).
These are not issues that threaten to elude review.
Therefore we follow the rule that “federal courts are
without power to decide questions that cannot affect
the rights of litigants in the case before them.” North
Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404,
30 L.Ed.2d 413 (1971); see DeFunis v. Odegaard, 416
U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164
(1964).
The district court issued a second injunction
directed to the Superior Court of the State of
Washington in and for the County of Thurston. The
federal injunction ordered a stay of state court orders
requiring the Washington Department of Fisheries to
suspend fishing regulations then in effect for the
1975 season. The 1975 season has now passed and
neither the order of the United States district court
nor that of the state court has current force.
Moreover, the situation that gave rise to the federal
injunction is unlikely to recur since, as noted above,
state agencies are no longer relied upon to allocate
fishing rights in the fisheries controlled by the IPSFC
as between treaty Indians and others. The issues
presented by the order enjoining the state
proceedings are now moot.
RP Se ee ak eS ON Nes ae OTR nee em
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Thirdly, the district court issued a preliminary
injunction to prevent the state from enforcing state
regulations which restricted certain types of net
fishing by the Swinomish tribe. The purpose of the
state regulation was to give effect to IPSFC
directives. This injunction has no practical con-
sequence for the parties now. It is not likely to be
reissued. The responsibility for enforcement of
IPSFC regulations has now been assumed solely by
federal authorities, and we think the appeal from this
order is also moot.
It must be quite apparent that the case tendered
for our decision here would require us to address
procedural questions that touch upon fundamental
principles controlling the delicate balance of state
and federal power. Beyond those questions we would
further be required to interpret substantive rights of
the parties under United States v. Washington that
are of great significance to the fishing industry in the
Northwest. We would not serve the vital interests of
the parties by addressing such questions in a
hypothetical case while other pending cases present
the issues in an active context.
We dismiss this appeal as moot.
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A—35
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
UNITED STATES OF AMERICA, et al.,
Plaintiffs,
VS.
STATE OF WASHINGTON, et al.,
Defendants.
XIVIL NO. 9213
MEMORANDUM ORDER AND PRELIMINARY
INJUNCTION
The court has fully reviewed and carefully
considered the motions of plaintiff, United States of
America, and the plaintiff intervenor Tribes, the
supporting and opposing memoranda, affidavits and
attachments thereto, the documentary and testimon-
ial evidence offered in open court at hearings held
August 8 and August 25, 1977, as well as evidence
offered at a hearing held on July 21, 1977 on aspects
relevant to the present motions, and the oral
argument of counsel. The Memorandum Order and
Preliminary Injunction signed and entered by this
court on August 10, 1977 and the clarifying minute
order entered on August 12, 1977 are hereby vacated
and superseded in their entirety by this Memoran-
dum Order and Preliminary Injunction.
Based on all of the evidence, the prior holdings
and decrees in this case, and certain decisions of the
A—36
Supreme Court of the State of Washington, this court
FINDS, HOLDS and ORDERS as follows:
1. The defendant, State of Washington, and its
courts, legislature and fisheries management and
regulatory agencies and officers have failed and
refused to manage and regulate the harvest of the
fishery resources that are subject to the reserved
treaty fishing rights of plaintiff tribes in a manner
that will comport with the prior decrees of this court
in this case declaring and enforcing those reserved
fishing rights which were secured by the treaties of
the United States referred to in Final Decision #1
in this case.
2. The defendant, State of Washington, through
its attorneys herein, and the defendant Director of
Fisheries, have stated that they are unwilling or
unable to so manage and regulate such fishery
resources and harvest and have stated that such
inability is based, at least in part, on State law as
recently pronounced by the Washington State
Supreme Court and on the refusal of the State
legislature to enact legislation authorizing the
Department of Fisheries to regulate the harvest of
the resource in conformity with the requirements of
this court’s prior decrees. (Tr. 8/8/77, pages 139-140,
160-162).
3. The inability or unwillingness to so manage
and regulate such fishery resources and harvest
imminently threatens to deprive the plaintiff tribes
of their treaty rights as previously decreed by this
Ne 7
court unless this court provides for the allocation,
under its direction and control, of the amount of fish
from each run that must be reserved from State
harvest control, and the amount that must be
reserved for spawning escapement, in order to insure
the plaintiff’s tribes their right to take fish, both now
and in the future, to the extent provided by this
court’s decrees.
4. The Supreme Court of the State of
Washington held in the case of Puget Sound
Gillnetters Association, et al. v. Donald Moos, et al.,
No. 44401, decided June 9, 1977 (565 P.2d 1151), that
the Department of Fisheries has a “statutory duty”
under State law “to authorize the harvesting of
salmon not required for * * * spawning” and
that it “may restrict the harvesting of salmon by the
commercial fishermen only to the extént that no
surplus exists and that the restriction is necessary
to prevent the impairment of the supply of salmon”
and further that in carrying out this duty to
authorize commercial harvest, the Director of
Fisheries may not “allocate fish among competing
claimants for purposes other than conservation,” and
specifically that he may not “allocate fish to treaty
Indians or to non-Indians,” and that “every
fisherman in a class must be treated equally,
and * * * given an equal opportunity to fish
* * * In this regard the Supreme Court of the
State of Washington held that treaty Indians are not
a separate class, but that each Indian is a citizen of
the United States who may not be “granted special
privileges and immunities. * * * Distinctions
between fishermen based upon their race or ethnic
background are not proper.” It reaffirmed this
holding on July 21, 1977 in Purse Seine Vessel
Owners Association v. Moos, No. 43938.
5. The Director of the Department of Fisheries
has stated publicly that as a State officer he feels
bound to comply with the State Supreme Court
holding in case No. 44401 even though the State
court did not issue a writ of mandamus to order him
to comply. (Tr. 8/8/77, page 137, 160-162). In
declining to issue the writ the State court said, “We
have full confidence that the Director will abide by
our decision.” (565 P.2d at 1152).
6. The holdings of the Washington Supreme
Court are contrary to the affirmed decision and
decree of this court on the federal questions of the
nature and scope of the treaty fishing rights of Indian
tribes and the obligations of the State toward those
rights, which decision and decree are binding upon
the defendants in this case, including the State of
Washington and its Director of Fisheries. Specifical-
ly, this court has decreed that the treaty tribes hold
-he reserved treaty right to harvest anadromous fish.
This reserved right is distinct from rights or
privileges of others, does not depend upon State law,
and may not be qualified by any action of the State.
This court has also decreed that the tribes reserved
the right to share equally with the non-treaty citizens
of the United States the opportunity to take fish at
their usual and accustomed places and that the
treaty fishermen as a group and non-treaty fishermen
as a separate group are each to have the opportunity
to take up to fifty percent (50%) of the harvestable
number of fish that would reach such fishing places;
that the Department of Fisheries’ harvesting plan
must provide for an opportunity for treaty Indians
to take this share; and that State laws or regulations
which affect the volume of anadromous fish available
for harvest by a treaty tribe must be designed so as
to carry out the purpose of the treaty provision.
Neither the treaty Indians nor the non-treaty
fishermen may fish in a manner so as to destroy the
resource or to preempt it totally. This court has also
decreed that the defendants must make “significant
reductions in the non-Indian fishery, as are necessary
to achieve the ultimate objective of the court’s
decision * * * .” (384 F.Supp. at 343, 345, 346,
401, 403, 406, 407, 408 and 420).
7. The defendant, Director of Fisheries, and
defendant, Director of Game, have each on occasion
applied RCW 75.12.060 and RCW 77.16.060 to
restrict the exercise of the fishing rights of certain
plaintiff tribes contrary to the holding and decree of
this court. (Ex. PL 109, PL 110, PL 111; Tr. 8/8/77,
(Sandison), pages 143-146).
8. On July 27, 1977, the Director of Fisheries,
without prior notice to the plaintiffs or this court,
adopted an emergency order closing certain areas,
A—40
including State Management Area 6A, to all treaty
Indian salmon fishing except when opened by
regulations of the International Pacific Salmon
Fisheries Commission. (Ex. PL 103). The United
States had previously taken official action to reject
IPSFC control over the treaty Indian sockeye and
pink salmon fisheries and to regulate such fisheries
in IPSFC waters by regulations of the Department
of the Interior. (42 Fed. Reg. 31450-31453; Tr. 8/8/77,
147-148).
9. On or about June 1, 1977, the Director of
Fisheries adopted and filed with this court an
emergency regulation closing Indian Treaty Puget
Sound Salmon Management and Catch Reporting
Areas 10B, 10C and 10D to commercial salmon
fishing by treaty Indians for the reason that the
existing forecast indicated that the 1977 Lake
Washington sockeye run would be below spawning
escapement needs and needed “complete protec-
tion.” The Director adivsed the tribes and this court
that if later data indicated a run in excess of
escapement needs, the sport and net fishery could
be authorized. (Ex. USA 141; USA 142).
10. On July 14, 1977 the Director of Fisheries
adopted an emergency regulation opening areas 10C
and 10D (Lake Washington) to sport fishing for
sockeye commencing July 16, 1977 giving as his
reason that the run size was then forecast to be
44,000 fish more than are needed for escapement and
that an emergency opening was necessary to harvest
A 4)
those excess fish. (Ex. USA 143). The Director
refused tribal requests to rescind his conservation
closure of the treaty Indian fishery on these same
fish for the reason that RCW 75.12.010 prohibited
a treaty net fishery in those areas. (Ex. USA 144;
Tr. 8/8/77, page 151).
11. Although no conservation justification for a
prohibition of the treaty fishery in Lake Washington
or in management area 10B existed subsequent to
July 14, 1977 the Director did not rescind the closure
of the treaty fishery until July 21, 1977 after the
plaintiffs had obtained that date for hearing in this
court on a motion for injunctive relief against the
continuance of the closure. (Ex. F 111). By that time,
the Department of Fisheries had established that the
harvestable surplus in the run was 61,000. (T>
7/21/77, page 151).
12. Under the protection of a Temporary
Restraining Order of this court, the Muckleshoot and
Suquamish Tribes authorized tribal fisheries to take
up to 30,500 fish. The State and the tribes monitored
this fishery. This fishery was closed by the
Muckleshoot and Suquamish Tribes after tribal
members had taken their allotted number of fish.
13. On July 22, 1977 the Director of Fisheries
adopted regulations for the 1977 commercial harvest
of Puget Sound chinook, coho and chum salmon runs.
(Ex. PL 102). Neither the regulatiors nor the
accompanying statement of “1977 Regulatory
Considerations” makes any reference to treaty rights
_~s_ =
A—42
of any Indians, nor do they contemplate compliance
by the State through its Department of Fisheries
with decrees and orders of this court in this case. The
regulations are intended to apply to treaty Indians
and non-treaty fishermen alike. (Ex. PL 121; Tr.
8/8/77 (Sandison), pages 139, 171-172). The
regulations fail to provide the plaintiff tribes with
the opportunity to harvest their share of such salmon
as decreed by this court and are in violation of the
decreees and orders of this court.
14. RCW 75.12.010 is broader than necessary for
the preservation of the fishery resource and does not
meet the standards previously declared by this court
for State measures which may lawfully be applied to
restrict members of treaty tribes from exercising
their tribe’s treaty fishing rights or which may be
applied to authorize non-treaty fishing within
limitations prescribed by the decrees of this
court.
15. The Fisheries Advisory Board appointed a
Technical Committee consisting of five biologists
representing treaty tribes and four biologists from
the Department of Fisheries to develop a joint report
on the run sizes, escapement goals, harvest numbers,
troll and sport interception rates and ceremonial and
subsistence numbers for 1977 runs of chum and coho
salmon returning to the various Puget Sound salmon
management areas. That committee’s unanimous
report was approved by the Fisheries Advisory Board
on August 24, 1977 and filed with the court on
A—43
August 25, 1977. On the basis of that report the court
finds that harvest allocations for such runs shall be
based upon the following data, subject to in-season
updates of pre-season estimates of run sizes and
harvest numbers to be determined as provided in this
Order:
COHO
Escape- Total
Management ment Harvestable ‘*Prior
Regions Run Size Goal Number Interceptions
Straits 59,000 11,000 48,000
Nooksack- pul
Samish 122,000 4,000 118,000 24,000
Skagit 66,000 35,000 31,000 13,000
Snohomish-
Stillaguamish 198,000 66,000 132,000 39,000
South Sound 513,000 45,000 468,000 100,000
Hood Canal 98,000 22,000 76,000 19,000
*Excludes 5,000 coho interceptions by treaty Indians
CHUM
Straits No harvestable runs expected
Nooksack-
Samish 12,300 6,000 6,300 0
Skagit 42,500 56,200 0 0
Snohomish-
Stillaguamish 18,000 22,600 0 0
South Sound 250,500 113,000 137,500 0
Hood Canal 204,000 142,000 62,000 0
16. The following figures represent subsistence
and ceremonial and on-reservation estimates of
treaty catch as previously filed by plaintiff tribes
with this Court:
A 44
Subsistence and Ceremonial
(The below listed number should be added to the run size and harvestable
numbers above listed)
COHO CHUM
Straits 2,000 300
Nooksack-
Samish 4,000 5,000
Skagit 1,600 1,200
Snohomish-
Stillaguamish 2,200 5,500
South Sound 17,000 11,300
Hood Canal ps 3,600 3,500
On-Reservation
COHO CHUM
Straits 12,000 —
Nooksack-
Samish No estimates available
Skagit 3,400 —
Snohomish-
Stillaguamish 7,800 —
South Sound 28,000 14,000
Hood Canal 12,000 14,000
The percentage allocations ordered herein for
coho and chum salmon are solely limited to the 1977
Puget Sound salmon runs and are based on the facts,
circumstances and equities peculiar to this year’s
salmon runs. These allocations of coho and chum
salmon shall not be interpreted in any way as an
express or implied modification by this court of Final
Decision #1.
17. Coho Salmon Allocation
For 1977 the allocations of Puget Sound area
coho salmon to the treaty Indian fisheries, including
fish taken for subsistence and ceremonial purposes
and those taken on the reservations, shall be 45%
of the tota! harvestable numbers shown in paragraph
A—45
15 above and the allocations to the non-treaty
commercial fisheries shall be 55% of such
harvestable numbers.
Because North Sound treaty tribes have
benefitted from fishing on unusually abundant
sockeye and pink salmon runs, while the South
Sound tribes have not, the court orders, in the
interest of equity, that the 45% allocation to the
treaty fishery be divided so that the share in South
Sound is closer to 50%, while that in North Sound
is somewhat further from 50%, as shown below:
Approximate Percentage of Total Harvestable Coho
Non-Treaty Treaty
Area Fishermen Fishermen
Strait of Juan de Fuca 55 45
Bellingham Bay-Samish Bay
(Nooksack-Samish Rivers) 60 40
Skagit River 63 37
Snohomish-Stillaguamish R. 58 42
South Sound 52 48
Hood Canal 55 45
Purposes of the above division of catch are to
give a 55%-45% overall allocation, and to give a
sharing formula of the salmon runs inside Puget
Sound which will approximate 60% to the treaty
fishery and 40% to the non-treaty fishery in all
regions except Bellingham Bay, which is approxi-
mately 50% to the treaty fishery and 50% to the
non-treaty fishery. The allocation percentages inside
Puget Sound are intended to provide an allocation
that can be attainable in practice without complex
manipulations in management of the treaty and
non-treaty fisheries.
These percentages shall continue to apply to any
revision in those harvestable numbers that may be
found to be required because of revised estimates of
run sizes.
(a) Strait of Juan de Fuca Tributaries
Based upon the agreed total numbers of coho
shown in the table, the court is satisfied that the
allocation ordered by the court can be achieved by
an allocation of 60% of the allowable catch in Puget
Sound of the salmon originating in the Strait of Juan
de Fuca tributaries to treaty Indian fishermen and
40% to non-treaty fishermen. On the basis of the run
size estimates now available, the allocation would be
22.500 coho to treaty Indian fishermen and 15,500
to non-treaty fishermen. The non-treaty fishermen
will have taken an estimated 12,000 coho in the troll
and sport fishery prior to their return. This number,
when added to the 15,500 coho allocated to
non-treaty fishermen, will approximate 55% of the
harvestable number of coho.
(b) Bellingham Bay-Samish Bay
(Nooksack-Samish Rivers)
Based upon the agreed total numbers of coho
shown in the table, the court is satisfied that the
allocation ordered by the court can be achieved by
an allocation of 50% of the allowable catch of the
Bellingham Bay-Samish Bay (Nooksack-Samish
A—47
Rivers) salmon in Puget Sound to treaty Indian
fishermen and 50% to non-treaty fishermen. On the
basis of the run size estimates now available, the
allocation would be 49,000 coho to treaty Indian
fishermen and 49,000 to non-treaty fishermen. The
non-treaty fishermen will have taken an estimated
24,000 coho in the troll and sport fishery prior to
their return. This number, when added to the 49,000
coho allocated to non-treaty fishermen, will
approximate 60% of the total harvestable number of
coho.
(c) Skagit River
Based upon the agreed total numbers of coho
shown in the table, the court is satisfied that the
allocation ordered by the court can be achieved by
an allocation of 60% of the allowable catch of the
Skagit River salmon in Puget Sound to treaty Indian
fishermen and 40% to non-treaty fishermen. On the
basis of the run size estimates now available, the
allocation would be 12,000 coho to treaty Indian
fishermen and 7,600 to non-treaty fishermen. The
non-treaty fishermen will have taken an estimated
13,000 coho in the troll and sport fishery prior to
their return. This number, when added to the 7,600
coho allocated to non-treaty fishermen, will
approximate 63% of the total harvestable number of
coho.
(d) Snohomish-Stillaguamish Rivers
Based upon the agreed total numbers of coho
shown in the table, the court is satisfied that the
A—48
allocation ordered by the court can be achieved by
an allocation of 60% of the allowable catch of the
Snohomish-Stillaguamish salmon in Puget Sound to
treaty Indian fishermen and 40% to non-treaty
fishermen. On the basis of the run size estimates now
available, the allocation would be 57,000 coho to
treaty Indian fishermen and 38,500 to non-treaty
fishermen. The non-treaty fishermen will have taken
an estimated 39,000 coho in the troll and sport
fishery prior to their return. This number, when
added to the 38,500 coho allocated to non-treaty
fishermen, will approximate 58% of the total
harvestable number of coho.
(e) South Sound
Based upon the agreed total numbers of coho
shown in the table, the court is satisfied that the
allocation ordered by the court can be achieved by
an allocation of 60% of the allowable catch of South
Sound salmon in Puget Sound to treaty Indian
fishermen and 40% to non-treaty fishermen. On the
basis of the run size estimates now available, the
allocation would be 231,000 coho to treaty Indian
fishermen and 154,000 to non-treaty fishermen. The
non-treaty fishermen will have’ taken an estimated
100,000 coho in the troll and sport fishery prior to
their return. This number, when added to the
154,000 coho allocated to non-treaty fishermen, will
approximate 52% of the total harvestable number of
coho.
A—49
(f) Hood Canal
Based upon the agreed total numbers of coho
shown in the table, the court is satisfied that the
allocation ordered by the court can be achieved by
an allocation of 60% of the allowable catch of Hood
Canal salmon in Puget Sound to treaty Indian
fishermen and 40% to non-treaty fishermen. On the
basis of the run size estimates now available, the
allocation would be 36,400 coho to treaty Indian
fishermen and 24,200 to non-treaty fishermen. The
non-treaty fishermen will have taken an estimated
19,000 coho in the troll and sport fishery prior to
their return. This number, when added to the 24,200
coho allocated to non-treaty fishermen, will
approximate 55% of the total harvestable number of
coho.
18. Chum Salmon Allocation
For 1977 the allocations of Puget Sound area
chum salmon to the treaty Indian fisheries, including
fish taken for subsistence and ceremonial purposes
and those taken on the reservations, shall be 50%
of the harvestable numbers shown in paragraph 15
above and the allocations to the non-treaty
commercial fisheries shall be 50% of such
harvestable numbers. These percentages shall
continue to apply to any revfsion in those harvestable
numbers that may be foynd to be required becaus
of revised estimates of run sizes. e
Because there are no significant prior intercep-
tions of chum salmon, the allocation of chum salmon
is a one-step process. Accordingly, for chum salmon
originating in the Bellingham Bay-Samish Bay
(Nooksack-Samish Rivers) the allocation is 5,650
chum salmon to the treaty fishery and 5,650 chum
salmon to non-treaty fisheries.
For the chum salmon originating in South Sound
the allocation is 74,400 chum salmon to the treaty
fishery and 74,400 chum salmon to non-treaty
fisheries.
For the chum salmon originating in Hood Canal
the allocation is 32,750 chum salmon to the treaty
fishery and 32,750 chum salmon to the non-treaty
fisheries.
19. Chinook Salmon Allocation
Chinook salmon are hereby allocated to treaty
Indian and non-treaty fishermen on the basis of a
percentage of the Washington Department of
Fisheries’ present run size predictions.
(a) Bellingham Bay Chinook Salmon:
The Court is satisfied, based on the advice of
its technical advisor, Dr. Richard Whitney, that the
proper allocation to treaty Indian fishermen will be
achieved by an allocation of 60% (which includes
on-reservation, ceremonial and subsistence catches)
of the allowable catch in Puget Sound to treaty
Indians and 40°%% to non-treaty fishermen.
On the basis of the present Washington
Department of Fisheries run size predictions, there
would be 47,200 salmon for treaty Indians and 31,500
salmon for non-treaty fishermen. Preliminary
estimates disclose that the non-treaty troll and sport
fishery will take an estimated 10,600 chinook salmon
prior to their return to Bellingham Bay. This
number, when added to the 31,500 chinook salmon
allocated to non-treaty fishermen, will approximate
% of the harvestable number of chinook salmon
after deducting the on-reservation, ceremonial and
subsistence catches.
The report of the Fisheries Advisory Board of
August 23, 1977 on the subject of the Bellingham Bay
chinook fishery informed the court that the
non-treaty share of chinook salmon in Bellingham
Bay had been reached and therefore the non-treaty
fishery was scheduled to close August 24, 1977.
(b) Skagit Bay Chinook Salmon:
The Court is satisfied, based on the advice of
its technical advisor, Dr. Richard Whitney, that the
proper allocation to treaty Indian fishermen will be
achieved by an allocation of 70% (which includes
on-reservation, ceremonial and subsistence catches)
of the allowable catch in Puget Sound to treaty
Indians and 30% to non-treaty fishermen.
On the basis of the present Washington
Department of Fisheries run size predictions, there
would be 6,600 salmon for treaty Indians and 2,800
salmon for non-treaty fishermen. Preliminary
estimates disclose that the non-treaty troll and sport
fishery will take an estimated 1,800 chinook salmon
prior to their return to Skagit Bay. This number
when added to the 2,800 chinook salmon allocated
to non-treaty fishermen will approximate 50% of the
harvestable number of chinook salmon after
deducting the on-reservation, ceremonial and
subsistence catches.
The report of the Fisheries Advisory Board of
August 23, 1977 on the subject of the steps taken
by the Washington Department of Fisheries to
comply with the Memorandum Order and Prelimi-
nary Injunction signed by this court on August 10,
1977 informed the court that Skagit Bay was closed
to non-treaty fishermen August 18, 1977 because the
non-treaty allocation was reached.
(c) Hood Canal Chinook Salmon:
The Court is satisfied, based on the advice of
its technical advisor, Dr. Richard Whitney, that the
proper allocation to treaty Indian fishermen will be
achieved by an allocation of 75% (which includes
on-reservation, ceremonial and subsistence catches)
of the allowable catch in Puget Sound to treaty
Indians and 25% to non-treaty fishermen.
On the basis of the present Washington
Department of Fisheries run size predictions, there
would be 12,500 salmon for treaty Indians and 4,100
salmon for non-treaty fishermen. Preliminary
estimates disclose that the non-treaty troll and sport
fishery will take an estimated 4,700 chinook salmon
prior to their return to Hood Canal. This number
when added to the 4,100 chinook salmon allocation
to non-treaty fishermen will approximate 50% of the
harvestable number of chinook salmon after
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A—S3
deducting the on-reservation, ceremonial and
subsistence catches.
The court is informed by the court’s technical
advisor, Dr. Richard Whitney, that the treaty
allocation of chinook salmon in Hood Canal has been
reached and the treaty fishery has therefore been
closed.
(d) Closures.
Non-treaty fishermen shall not fish commercial-
ly for chinook salmon in any Puget Sound area
(including Strait of Juan de Fuca), other than Hood
Canal, as above specified, unless prior approval of
the regulations authorizing such fishing is obtained
from the court’s Fisheries Advisory Board or the
court.
Treaty fishermen shall not fish in Hood Canal,
as above specified, unless prior approval of the
regulations authorizing such fishing is obtained from
the court’s Fisheries Advisory Board or the court.
20. Gordon Sandison is the duly appointed
Director of Fisheries of the State of Washington.
Ralph W. Larson is the duly appointed Director of
Game of the State of Washington.
21. The issuance of a preliminary injunction is
necessary to prevent irreparable injury to the
plaintiff tribes and their members.
22. The United States of America and the
plaintiff tribes have no adequate remedy at law.
23. It is necessary in aid of this court’s
jurisdiction and to protect and effectuate its
judgments that a Preliminary Injunction be issued
as hereinafter set out.
REMOVAL OF TREATY ALLOCATION
FROM STATE EXERCISE OF
JURISDICTION
The Supreme Court of the United States has
held that while the states have jurisdiction under
their police power to regulate the off-reservation
exercise of the treaty Indians’ reserved fishing right
to the extent necessary to preserve the resource, they
do not have the authority to qualify that right, even
though the Indians are now citizens of the United
States. Puyallup Tribe v. Department of Game, 391
U.S. 392, 398 (1968). That Court has not hesitated
to prohibit the application to treaty Indians of state
laws that went beyond this limited power of
regulation. Antoine v. Washington, 420 U.S. 194
(1975); Washington Department of Game ov.
Puyallup Tribe, 414 U.S. 44 (1973); Tulee v.
Washington, 315 U.S. 681 (1942). The Court of
Appeals for this Circuit has done likewise. United
States v. Washington, 520 F.2d 676 (1975) (this
case); Holcomb v. Confederated Tribes, 382 F.2d
1013 (1967); Maison v. Confederated Tribes, 314
F.2d 169 (1963); Makah v. Schoettler, 192 F.2d 224
(1951). |
On the basis of the above findings of State
refusal to manage the fishery resources that are
subject to the reserved and federally-secured rights
A pee
one et Prat
cc AMON OL ALIS COI il
of the plaintiff tribes and to regulate the harvest
thereof in a manner that conforms to this Court’s
prior holdings and decrees that have now become
final and binding as a result of completion of
appellate review, this Court reluctantly, but
necessarily, finds that it is necessary for this Court
to make the allocations required to effectuate those
decrees, including approval of allocations of fish
necessary for propagation escapement to perpetuate
the fish runs, and to enjoin the State from exercising
any form of jurisdiction over the fish so allocated
without obtaining the express approval of this Court
in a manner herein provided for.
It is further necessary that this court require the
defendants to adopt and enforce appropriate
regulations to prevent non-treaty fishermen from
taking more than their allocated shares of the runs
or from taking fish needed for propagation to
perpetuate the runs.
Accordingly, it is HEREBY ORDERED that:
A. The 1977 allocations of Puget Sound salmon
shall be those adopted in this Memorandum Order
and Preliminary Injunction unless modified by this
court.
B. The Washington Department of Fisheries
shall be responsible for developing updated estimates
of run sizes for coho and chinook salmon as each
particular fishery develops and advise the court, the
court’s Technical Advisor, and the Northwest Indian
Fisheries Commission who shall in turn be
responsible for notifying each affected treaty Indian
tribe thereof.
As to chum salmon the court hereby refers the
matter to the Fisheries Advisory Board for the
development of an appropriate method of updating
in-season run size estimates.
C. Any challenges of the Washington Depart-
ment of Fisheries shall be presented to the Fisheries
Advisory Board pursuant to the established
procedures.
D. Jurisdiction and harvest control over all
allocations for treaty fisheries is hereby vested in this
court. The defendants, State of Washington, Director
of Fisheries, and State Game Commission and
Director, and their officers, agents, servants,
employees, attorneys, and all other persons in active
concert or participation with them who have actual
notice of this or subsequent orders are hereby
enjoined from exercising jurisdiction or any form of
harvest management, authorization or control over,
or in any manner regulating, restricting, prohibiting
or interfering with the taking, fishing for, possessing
or disposing of, the fish comprising that portion of
any run allocated by this court to the treaty fisheries,
except as specifically provided for in this or
subsequent order of this court.
E. The defendants, State of Washington,
Director of Fisheries, State Game Commission and
Director, and their officers, agents, servants,
employees, attorneys, and all other persons in active
ee ee ee ee!
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concert or participation with them who have actual
notice of this or subsequent orders are hereby further
enjoined 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
pursuant to this order. Copies of all State regulations
governing the non-treaty harvest in the case area
shall be filed with the court’s Fisheries Technical
Advisor, each affected plaintiff tribe, the United
States Fish and Wildlife Service, the Northwest
Indian Fisheries Commission, and their respective
counsel. The State shall carefully monitor any
non-treaty fishery and immediately advise the court
when any non-treaty catch meets the quota specified
in this court’s allocation and also advise this court
of any encroachment on spawning escapement goals
and of the extent and effectiveness of State efforts
to prevent such encroachment.
REGULATION OF TREATY ALLOCATION
F. Regulation and harvest control over the fish
allocated to treaty fishermen pursuant to this Order
shall remain with the court. Tribal regulations
governing such fishery shall be adopted and filed
with the court in strict conformance with Final
Decision No. 1 and subsequent orders of this
court.
G. Nothing in this Order shall diminish the
immunity from state regulation or affect the
jurisdiction of self-regulatory tribes as prescribed by
prior Orders of this court, except that such tribes
shall be bound by the allocations made effective
pursuant to the provisions of this Order.
H. The United States, through its appropriate
agencies and officers, is hereby directed to monitor
fishing activities in the waters of the case area for
and on behalf of the court and to report to the court
on a daily basis, with copies to all affected parties,
regarding the extent of compliance with State, tribal
and court determined regulations and to immediately
report any substantial violations thereof to the court
for further action as the court deems appropriate.
MISCELLANEOUS PROVISIONS
I. The defendants shall not apply or enforce
RCW 75.12.010 or the regulations of the Director of
Fisheries concerning certain Puget Sound salmon
fisheries adopted July 22, 1977, to regulate, limit or
restrict the exercise of the fishing rights of a treaty
tribe or to authorize a non-treaty harvest in excess
of the amounts allocated for that purpose pursuant
to this Order.
J. The defendants shall not adopt, apply or
enforce any regulations — including Director of
Fisheries Order No. 77-60 — to regulate, limit or
restrict any fishing by members of a treaty tribe that
is authorized by regulations of the United States or
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any of its agencies without first obtaining the prior
express approval of this court.
K. The defendants shall not apply or enforce
any emergency regulations adopted under the
permission of paragraph 19 of this court’s Injunction
of March 22, 1974, as modified by the Order of
December 27, 1976, Order Re: Rules of Procedures
for Fisheries Advisory Board, to limit or restrict the
exercise of the fishing rights of a treaty tribe beyond
the period for which the facts and circumstances of
the emergency recited in the statement filed with this
court continue to exist or beyond thirty days after
the adoption of such emergency regulations,
whichever is shorter, provided that for regulations
heretofore adopted, said thirty-day period shall
commence on the date of this Order. The foregoing
durational limitation on emergency orders shall not
preclude the defendants from adopting, in accord-
ance with the approved procedural and other
provisions of this court’s orders, continuing
regulations or renewing emergency regulations to
deal with conditions that extend beyond thirty days.
The defendants shall not, without the prior approval
of this court, adopt, apply or enforce any emergency
closure or limitation of treaty fishing if the
non-treaty fishermen have taken more than the
number of fish allocated pursuant to this order for
the non-treaty harvest from any run affected by such
regulation.
L. The portions of this court’s order of March
22, 1974 entitled “Interim Plan and Stay Order
Pending Final Decision on Appeal” which stay
certain portions of Final Decision No. 1, the Decree
of February 12, 1974 and of the Injunction of March
22, 1974 are hereby terminated.
M. Gordon Sandison is hereby substituted for
Donald W. Moos and Ralph W. Larson is substituted
for Carl Crouse as Intervenors-Defendants herein,
but this does not relieve Donald W. Moos as a
defendant with respect to the separate Motions of
Certain Tribes and of the United States for
Sanctions for Failure to Make Discovery dated
November 30, 1976, and December 2, 1976,
respectively.
It Is So ORDERED, ADJUDGED AND DECREED this
31st day of August, 1977.
/s/
George H. Boldt
Sr. United States District Judge
A—6l
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
UNITED STATES, et al.,
Plaintiffs,
VS.
STATE OF WASHINGTON, et al.,
Defendants.
CIVIL NO. 9213
MEMORANDUM ADOPTING SALMON
MANAGEMENT PLAN
APPENDIX A
The court has carefully reviewed and fully
considered the report of the court’s Fisheries
Advisory Board, dated July 14, 1977, concerning an
agreed upon salmon management plan for 1977,
subsequent modifications thereto as proposed by the
parties and the court’s technical advisor, Dr. Richard
R. Whitney, the oral argument of counsel presented
in open court at a hearing held August 30, 1977, and
the oral recommendation of the court’s technical
advisor, Dr. Whitney.
Upon careful consideration and review it appears
that the parties, with only a few exceptions, are in
basic agreement. It is also clear that all parties, the
court’s technical advisor, and the court agree that a
salmon management plan for 1977 is essential.
Moreover, in the opinion of the court it is imperative
PS a ee a ee
.@
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that a salmon management plan be adopted by this
court forthwith.
Accordingly, the court adopts the following plan,
effective immediately, which in the opinion of the
court will best accommodate the interests of all
parties. However, the court recognizes that this plan
is not an end, in and of itself. Therefore, the court
instructs the parties to continue to work together
with the court’s technical advisor, and through the
Fisheries Advisory Board, to refine issues that may
still require clarification, modification, or develop-
ment, such as the three points raised by Dr. Whitney
in his memorandum to the court dated August 30,
1977, and to present to the court for approval any
proposed clarifications to which all parties agree.
The following plan shall continue in effect until
May 30, 1982. However, on or before May 1 of each
succeeding year, beginning with 1978, the parties are
instructed to confer with each other and the court’s
technical advisor with respect to any recommended
clarifications and/or modifications of any provisions
contained in the salmon management plan then in
effect. If no modifications are proposed to the court
prior to May 15 of any year, the then existing salmon
management plan will automatically continue in
effect for another year.
1. Preamble
1.1 The purpose of this plan is to establish
guidelines for management of salmonid resources
originating in or passing through Washington waters
A—63
from the mouth of the Strait of Juan de Fuca
eastward (Puget Sound). The parties, hereto, all
Puget Sound Treaty Tribes, and the State of
Washington, agree to a philosophy of cooperation in
implementing management programs to maintain,
perpetuate and enhance the salmonid resources.
1.2 This plan is intended to insure that treaty
fishermen and non-treaty fishermen subject to their
respective regulatory authorities shall be accorded
the opportunity to harvest their shares as determined
in United States v. Washington, 384 F. Supp. 312,
aff'd 520 F.2d 676, cert. denied 423 U.S. 1086
(1976).
1.3 The parties agree to enact and recommend for
enactment by the Pacific Fishery Management
Council, appropriate regulations for the ocean
salmon fishery that will provide for adequate
escapement of salmon into Puget Sound waters to
achieve the goals and purposes of this plan.
1.4 The parties shall advocate and recommend to
the appropriate govern iental and _ regulatory
entities, international agreements to reduce foreign
interceptions, particularly Canadian, of salmonids
originating from Puget Sound.
1.5 The duration of this plan shall be for five (5)
years from the date of acceptance by the court,
subject to annual review, renewal, and modification,
except that the provision (Sec 7.2) for the annual
adjustment of shares shall be modified only upon
terms that are equitable.
1.6 Where action of the parties is required in this
plan, failure to act or to reach agreement shall be
resolved as provided in section 11.
1.7 his order supplements and where inconsist-
ent modifies the order on certain questions re:
Fisheries Management, dated April 13, 1976, United
States v. Washington, Civil No. 9213 WD Wash,
which is hereby extended and shall remain in effect
until further order of the court. This order also
supplements and, where inconsistent, modifies the
Order for Program to Implement Interim Plan, dated
October 8, 1974 as extended by the Minute Order
dated April 5, 1976 and the Order Re: Rules of
Procedure for Fisheries Advisory Board and
Resolution of Disputes, dated December 17, 1976.
This order, for example, removes from the court
much of the burden of making equitable adjustments
through an automatic adjustment mechanism
(Section 7.2).
2. Definitions — Except where the context
clearly requires otherwise, the following terms used
in this plan have the following meanings:
2.1 Prior net interceptions. Harvest by net
fisheries of a run outside of its region of origin.
Computed separately for treaty and non-treaty
fishermen.
2.2 Region of origin. A geographic area which
can be used to separate runs of the same species. The
following geographic areas are recognized regions of
origin for Puget Sound: 1) Strait of Juan de Fuca
(Tributaries) 2) Bellingham-Samish Bays-Nook-
sack-Samish Rivers 3) Skagit 4) Stillaguamish-
Snohomish 5) South Puget Sound, South of
Snohomish System 6) Hood Canal 7) Canada.
2.3 Run. A stock, or group of stocks identified
for fishery management purposes which return to the
same region of origin at similar times.
2.4 Run management period. A time interval
during which a specific run is a target of a fishery
in a particular harvest management area.
2.5 Run size. The total number of fish in a
run.
2.6 Salmonid. Refers only to the following
species:
Chinook—Oncorhynchus tshawytscha (also
called spring, king, t
blackmouth) . , odne
Coho—Oncorhynchus kisutch (also called
silver, silverside, or hooknose)
Pink—Oncorhynchus gorbuscha (also called
humpback or humpy)
Chum—Oncorhynchus keta (also called dog
or keta)
Sockeye—Oncorhynchus nerka (also called
red or blueback)
Steelhead—Salmo gairdneri
2.7 Stock. A population of one species migrating
to a particular lake or stream (or portion thereof)
within a region of origin, at a particular season.
2.8 Twelve Questions. Order on Certain
Questions re: Fisheries Management, dated April 13,
1976, United States v. Washington, W.D. Wash. No.
9213.
2.9 Viable natural stock. A stock for which a
spawning escapement goal is established with the
intent that the fishery will be managed to meet this
goal.
3. Steelhead stocks. The parties shall
manage from the premise that steelhead and salmon
fisheries are intimately related.
The parties have made substantial progress in
developing cooperative plans for scientific man-
agement of steelhead in their respective river
systems, and it is important that these efforts result
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