Petition — Washington v. United States
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IN THE -—_ Supreme Court, U. S. --
Supreme Court of the United States FILED
OCTOBER TERM 1977 JUL 2 1978
N. _wR=-13 9) _MICHAEL RODAK, JR., CLERK
PUGET SOUND GILLNETTERS ASSOCIATION, et al.,
Petitioners,
V.
UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF WASHINGTON,
Respondent.
STATE OF WASHINGTON, et al.,
Petitioners,
Vv.
UNITED STATES OF AMERICA, et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO
THE NINTH CIRCUIT COURT OF APPEALS
Office and Post MORIARTY, LONG, MIKKELBORG &
Office Addresses: BROZ
By CHARLES T. YATES
3300 Seattle-First
Nat] Bank Bldg. Attorneys for Puget Sound
Seattle, WA 98154 Giitnetters Association
JOSEPH T. MIJICH/JOHN P. WORLD
3920 Bank of Cali-
fornia Center Attorneys for Petitioner
Seattle, WA 98164 Purse Seine Vessel! Owners
Association
TABLE OF CONTENTS
Petition For Writ Of Certiorari. ....-+-+-e+-s 1
cs
Il.
VI.
Opini ons Below. . . . . . . . . . . > . >. .
Re a ge ere
«see 6s 6 eee ee 6a 6
> Ww WH
Constitutional Provisions, Treaties,
So ee a ee
Treaties . . . . . . . . . . . . . . . . . 6
Seatement OF Tne FeGthc «2 we ees on 6 GB
Reasons For Granting Writ of Certiorari .. 19
A.
The Conflict of Decisions by the
Washington Supreme Court and the
Federal District Court Require
Doe! ot. re
The Lower Court Has Decided A
Federal Question In A Way In
Conflict With Applicable De-
etetens GF THUS GONFEs cece ees seen
The Rights Under These Indian
Treaties Are an Important Question
of Federal Law Which Should Be
Settled By This Court. .....+-. 30
The Lower Court Has Rendered a
Decision On an Important State
Question in a Way That Is In
Conflict With State Law and the
Sactsten eof THIS COure 2 ew wc eo we eo eo a OA
With the Sanction of the Court of
Appeals, the Lower Court Has So Far
Departed From the Accepted and Usual
Course of Judicial Proceedings As To
Call For an Exercise of This Court's
Power of Supervision. ....+-++-+-. 33
VII. Conclusion
ij
F. The Effect of United States v.
Washington IV is a Matter of
Such Imperative Public Impor-
tance as to Justify Deviation
from Normal Appellate Process ... . 36
APPENDICES:
A
B
Constitutional Provisions, Treaties ... .A-l
Opinion
PSGA v. U.S. District Court
Filed 4/24/78 s 2-2 -— 8 2 © 08 82 SD @ 8 € 6 B-1
Preliminary Injunction re Enforcement of
Limitations on Nontreaty salmon fisheries
for 1978 and subsequent seasons ..... .C-l
Findings of Fact, Conclusions of Law
U.S. v. Washington 6/6/78
Preliminary Injunctions staying court
injunction and order implementing pre-
liminary injunction
U.S. v. Washington 8/31/77 ....... .D-l
Temporary Restraining Order re Enforcement
of 1977 fisheries
U.S. y. Washington Filed 8/31/77... . .E-l
Memorandum, Order and Preliminary In-
junction
U.S. v. Washington Filed 8/31/77 .... .Fe-l
Memorandum Adopting Salmon Management Plan
U.S. v. Washington 8/31/77. . . ..... Gl
Preliminary Injunction re: Enforcement
of 1977 fisheries
U.S. vo Washington SO/77. 2 2 «0 6 0 2 eo Hel
7 o . o . . . . . . . . . . . . 40
Page
I - Order for Service of Notices regarding
1978 Enforcement Hearing
U.S. ve Washington L2/S/77 «4. « 2 « 2 @ elel
J - Opinion
U. S. v. Washington, 9th Cir.
No. 75-2835, 76-1042 oe 6) eo & 3 & SS wJ-l
K = National Marine Fisheries Services Letter. K-1l
TABLES OF AUTHORITY
Table of Cases
Carroll v. Presidents and Commissioners
of Princess Anne, 393 U.S. I75 (1968) ... .35
Chase National Bank v. Norwalk, 291 U.S. 431
(1934). e * a - e + 7 7 . e . . 2 7 . 34-35
Choctaw Nation of Indians v. United States,
S16 UsS. 425 (1943S) . 2 0 0 0 0 tw 8 ot chy 24
Confederated Band of Ute Indians v. United
otates, 350 U.S. 169 (1947) . 2. 2. 2 ww 2 2 24
Department of Game v. Puyallup Tribe, Inc.,
414 U.S. 44, 36 L. Ed. 2d 254 (19/3)
(Puyallup II)... + « © ebeees
Federal Trade Commission v. Raladum Co.,
ra | a >. ee
Missouri ex rel. Laclede Gaslight Co. v.
PTD, SFU Usde 76 (LEGG) s « © 0 0 0 0 2dhead
Puget Sound Gillnetters Association v. Moos,
BB Wn.cd 667, P.2d (1977)... 11,24,31
Puyallup Tribe of Indians v. Department of
Game, 391 U.S. 392, 20 L. Ed. 2d
689 (1968) (Puyallup I) ...... . 28,29,30
iv
Page
Puyallup Tribe, Inc. v. Department of Game
of the State of aesae aeons 45 L. Week
uya up _ — _ . + . . . o 28
Supervisors of Carrol] County v. United
States ex rel. Keynolds, 18 Wall /1l,
(18/3). . * a e a . . - - - . + . . © . . - 32
Tulee v. LD 315 U.S. 681, 861 L. Ed.
_ . J * . . . - — > _ o . > 2 . 28
United States v. Choctaw Nation, 179 U.S. 494
{ 1900) 8 e . . . « . _ . > _ _ . . s . - > — 24
United States ex rel. Johnston v. County
Court of Clark County, 95 U.S. /69,
(18/8). ao . e . . 7. J s . . . 8 7. eo 7 . > . 32
United States v. Washington, 384 F. Supp.
312 (1974). “ef © @ @ @ 9-10,15,19,20-21,30,34
United States v. Washington, 520 F.2d 676
(19/76). ° e . ° . . ’e o o . . o + . . 10,21,29
United States v. Washington, 423 U.S. 1086
[aee@le «0 6.5.6 0.8 6 o 6 8 oe OheRegneeee
United States v. Washington, 5/73 F.2d 1121
(1978). . . io ° a e ce - 7 * 7 oO o . 36,37
United States v. Winans, 198 U.S. 371, 49 L. Ed.
eae REeees os ae e's oo & 208. Oe e 6 oe eee
Washington State Commercial Passenger
ishing Vessel Association v.
Tollefson, 89 Wn.dd 2/6,
__ Pedd_ _—s (977) 2 2 « 2 0 2 0 « 024,26,29,31
Statutes
eee ee) eee ee ee ee a ee ee
Constitutional Provisions
U.S. Const., art. I § 8.
art. I11§2.
art. I1§3.
art. III § 1
art. III § 2.
U.S. Const. amend. V...
Other Authority
Treaty with the Makah (Treaty of Neah Bay),
12 Stat. 939. oo a > _ . > . . . -_ >. a
Treaty of Medicine Creek, 10 Stat. 1132. ...
Treaty of Point Elliott, 12 Stat. 927. ....
Treaty of Point No Point, 12 Stat. 933...
Treaty with the Quinaults (Treaty of Olympia)
12 Stat. 971. > . >. > . o . . . . . . . . .
Treaty with the Yakimas. 12 Stat. 951. .....
U.S. Supreme Court, Rule 20 ...-. ec cee
TEES. 5 «© © © © ¢
a.
- 6
» 6
» 6
. 6
- 6
oe
Vee
. 7
7
- 4,36
eS Oe eee
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1977
NO.
PUGET SOUND GILLNETTERS ASSOCIATION, et al.,
Petitioners,
Ve
UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF WASHINGTON,
Respondent.
STATE OF WASHINGTON, et al.,
Petitioners,
Ve
UNITED STATES OF AMERICA, et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO
THE NINTH CIRCUIT COURT OF APPEALS
PETITION FOR WRIT OF CERTIORARI
Petitioners, Puget Sound Gillnetters Asso-
Ciation and Purse Seine Vessel Owners Association,
hereinafter referred to as petitioners, pray that
writ of certiorari issue to review:
1. The opinion and judgment of the United
States Court of Appeals for the Ninth Circuit
2
entered in Puget Sound Gillnetters Association,
v. United States District Court for the Western
District of Washington, cause No. 77-3129;
2. The opinion and judgment of the United
States Court of Appeals for the Ninth Circuit
entered in United States v. Washington, cause Nos.
77-3654 and 77-3655;
3. Findings of Fact, Conclusions of Law, and
Preliminary Injunction re: Enforcement of Limita-
tion on Non-Treaty Salmon Fisheries for 1978 and
subsequent seasons entered by the United States
District Court, Western District of Washington,
at Tacoma, United States v. Washington, No. 9213
(June 6, 1978).
as
OPINIONS BELOW
The opinion of the United States Court of
Appeals for the Ninth Circuit in Puget Sound
3
hereinafter be referred to a. United States v.
Washington III.
The Findings of Fact, Conclusions of Law
and Preliminary Injunction Re: Enforcement of
limitation on non-treaty salmon fisheries for 1978
and subsequent seasons entered by the United States
District Court Judge for the Western District of
Washington at Tacoma, George H. Boldt, in United
States v. State of Washington, are unreported, are
set forth in Appendix C, and will hereinafter be
referred to as United States v. Washington IV.
Il.
JURISDICTION
The decision of the United States Court of
Appeals for the Ninth Circuit in United States v.
Washington III was issued on April 24, 1978. The
Gillnetters Association v. United States Dis-
trict Court For The Western District of Washington
Findings of Fact, Conclusions of Law and Prelimi-
nary Injunction issued by the United States Dis-
trict Court, Western District of Washington in
United States v. Washington IV was rendered June 6,
and United States v. Washington, as reported in 573
F.2d 1123 (1978), appears in Appendix B, and will
1978. The jurisdiction of this court is invoked
under 28 U.S.C. § 1254. This single petition is
4
filed pursuant to Rule 23.5 of this Court because
the court of appeals rendered a single decision
in the matters of Puget Sound Gillnetters Asso-
ciation, et al. v. United States District Court,
supra, and United States v. Washington III, supra.
Writ of certiorari is sought in United States v.
Washington IV pursuant to Rule 20 of this Court
prior to judgment by the court of appeals because
the matter is of such imperative public importance
as to justify the deviation from normal appellate
processes.
III.
ISSUES
Is Judge Boldt's interpretation of the treaty
language correct, and, if not, is the injunction
issued pursuant to that interpretation invalid?
2. Is an individual who conducts business in
a state, in sucn privity to that state, that a
court may directly enjoin the citizen without his
being a party to or a participant in the cause of
action in which the State is a party? Assuming
privity, if an injunctive order is sought against
5
an individual, is that individual entitled to
notice of and participation in the injunctive
hearing prior to its issuance?
3. Are the Indian treaties non-self-execut-
ing, and non-justiciable, thereby precluding
judicial implementation?
4. Did Judge Boldt exceed his authority by
ordering the Department of Commerce and Transpor-
tation to involve themselves in the management of
Puget Sound salmon when the executive branch has no
statutory authority to do so?
5. Is an allocation of over 50% of the salmon
resource to less than 1% of the population of a
state or an allocation of over 80% of the commer-
cially harvested salmon to less than 17% of the
commercial fishermen an abuse of discretion in the
utilization of its equitable powers by a court?
IV.
CONSTITUTIONAL PROVISIONS, TREATIES, STATUTES
INVOLVED
Constitutional provisions, treaties, and
statutes involved are as follows and are reprod-
uced in Appendix A, infra, pp. A-l to A-_.
(1) Constitutional Provisions of the United
States
(a) Article I, § 8, Powers of Congress A-1
(b) Article II, § 2, Powers of the Presi-
dent A-2
(c) Article II, § 3, Powers and Duties of
the President A-3
(d) Article III, § 1, Judicial Powers A-3
(e) Article III, § 2, Jurisdiction of
The Federal Courts A-3
(f) Amendment V - Due Process A-4
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. The
six treaties are:
7
(a) Treaty of Medicine Creek, 10 Stat. 1132
(1854). A-5
(b) Treaty of Point Elliott, 12 Stat. 927
(1855). A-5
(c) Treaty of Point No Point, 12 Stat. 933
(d) Treaty with the Makahs (Treaty of Neah
Bay), 12 Stat. 939 (1855). A-6
(e) Treaty with the Quinaults (Treaty of
Olympia), 12 Stat. 971 (1855). A-6
(f) Treaty with the Yakimas, 12 Stat. 951
(1855). A-7
Those six treaties each contain a similar pro-
vision, and only that provision is repeated in the
appendix. The following is typical:
The right of taking fish, at all usual and
accustomed grounds and stations, is further
secured to said Indians, in common with al]
citizens of the Territory, and of erecting
temporary houses for the purpose of curing
together with the privilege of hunting,
gathering roots and berries, .. . On open
and unclaimed lands. Provided, however,
that they shall not take shellfish from any
beds staked or cultivated by citizens.
V.
STATEMENT OF THE FACTS
This proceeding is before this Court to esta-
bish entitlement to manage and harvest the sa’ non
resource in Puget Sound, State of Washington. The
value of this resource approaches, in an unpro-
cessed state, $50,000,000 each year. Salmon, of
which there are five species in Puget Sound,
chinook, coho, chum, pink and sockeye, are ana-
dromous fish that spawn in fresh water, migrate
into the Pacific Ocean and then return to fresh
water to spawn and die.
Prior to the settlement of the Northwest by
non-Indians, salmon was a staple of the Indian
tribes living in the Puget Sound region. In the
mid-1850's the United States entered into a series
of treaties with Indians in the Puget Sound region,
which provided for the movement of the various
Indians onto reservations but granted to the
Indians: "(T]he right of taking fish, at all usual
and accustomed grounds and stations, ... in
9
common with all citizens of the territory." (See
Appendix A).
As methods for the preservation and canning
of salmon developed, the value of the resource
increased. Fishing on salmon stocks grew until it
became necessary for the State of Washington to
undertake management of the resource in order to
conserve it. It was the State of Washington's
efforts to conserve the salmon that created the
conflict between the State of Washington and
various treaty tribes over the Indians’ entitlement
to harvest salmon contrary to regulations adopted
by the State. This battle resulted in the filing
of the suit which is the underlying basis for this
application.
The United States, in its capacity as trustee
for various Indian tribes in the State of Washing-
ton, filed a complaint against the State alleging
that the State's statutory and regulatory scheme
for managing the salmon fishery was interferring
with the fishing rights of various Indian tribes.
Judge Boldt, in United States v. Washington, 384 F.
10
Supp. 312 (1974), found that the State of Washing-
ton through its statutes and regulations did
interfere with the treaty granted fishing rights of
the various tribes and further interpreted those
treaty rights to include a guarantee of an oppor-
tunity to harvest at their usual and accustomed off
reservation fishing grounds 50% of the salmon not
necessary for conservation.
During the pendency of the case, Judge Boldt
denied intervening party status various non-treaty
individuals and assocations who were involved in
the commercial or recreation harvest of salmon.
He did grant party status to the various tribes
located in the Pacific Northwest whose interests
were represented by the United States government.
Following his decision and its affirmation by
the Ninth Circuit Court of Appeals, United States
v. Washington, 520 F.2d 676 (1976), Judge Boldt
continued to exercise jurisdiction over the matter
and issued a series of directives to the State of
Washington requiring that it issue regulations
governing the harvest of salmon by non-treaty
commercial fishermen in order to allow
11
treaty fishermen a guaranteed number of salmon.
The State of Washington issued these regulations,
and the non-treaty commercial fishermen challenged
their validity in Washington State courts. These
challenges included an application for writ of
mandamus filed with the Washington State Supreme
Court on behalf of the two fishing associations
representative of the majority of non-treaty
commercial fishermen. As a result of this applica-
tion, the Washington State Supreme Court issued
its decision in Puget Sound Gillnetters Ass'n
v. Moos, 88 Wn.2d 677, 565 P.2d 1151 (1977), in
which the State Supreme Court concluded that
neither the State Constitution nor its statutes
permitted the State through its Department of
Fisheries to restrict non-treaty fishermen in order
to allocate salmon to treaty fishermen. Addition-
ally the Washington State Supreme Court concluded
that Judge Boldt had erred in his interpretation of
the Indian treaties. The court found that the “in
common with" language of the treaties entitled
individual Indians to access to their fishing
12
grounds and an equal opportunity to participate in
the salmon fishery with non-Indians. The court
further found that Judge Boldt could not require by
his injunctive authority a State agency to act
beyond its authorized statutory powers. An
application for writ of certiorari has been
filed in this case and is pending before this Court
(Puget Sound Gillnetters Association v. Moos,
petition for cert. filed, no. 77-983 (Jan. 6,
1978).
Despite the decision by the Washington Supreme
Court defining the authority of the Department of
Fisheries, Judge Boldt continued to issue mandates
to the Department of Fisheries requiring the
promulgation of regulations restricting nontreaty
fishermen in order to effect his allocative scheme
(See Appendix D). The Department of Fisheries
issued the regulations as required but was unable
to enforce them through the State courts because of
the Washington State Supreme Court decision. As a
result there was no effective method for the
implementation of Judge Boldt's decision except
through his direct intervention. See Appendix E.
‘
a WAIT | BY
13
In August of 1977, a series of orders and two
preliminary injunctions were issued directly
against commercial non-treaty fishermen and associ-
ations prohibiting commercial salmon fishing (See
Appendices E & F). These orders and injunctions
were issued with no notice to the fishermen or
their associations. Also, during the month of
August 1977, Judge Boldt issued a number of injunc-
tive orders which provided among other things:
1. That the State of Washington enforce regu-
lations that its supreme court had determined to
be beyond the scope of the authority of the State
to act; Appendix D.
2. That the State courts were not to inter-
fere with the implementation of the State regula-
tions, although they had been determined to be
contrary to State law by the state supreme court;
Appendix 0.
3. An estimate of salmon available for har-
vest in 1977, and ordered the numbers of salmon
to be harvested by each of the treaty and non-
treaty fishermen; Appendix F.
14
4. A plan for the management of salmon har-
vest on Puget Sound for the next five years; Appen-
dix G.
5. Ordered the United States through its
agencies and officers to take all steps necessary
to insure an orderly harvest of salmon on Puget
Sound and to preserve the salmon runs; Appendix E.
All of the foregoing orders were proposed and
drafted by the United States. On September 27,
1977, at the request of and in the form proposed by
the United States, Judge Boldt issued a pre-
liminary injunction which closed Puget Sound to
all net fishing by non-treaty fishermen. The
fishermen were not parties to the case nor allowed
to participate in the hearing. Included in the
order was a directive to various federal agencies
to involve themselves directly in the enforcement
of the terms of the order. As a result of this
injunction, the Department of Commerce through its
National Marine Fisheries Service Officers served
the injunctive order on non-treaty fishermen and
issued citations to fishermen found to be in
violation of the order. Approximately 27 citations
15
were issued and to the date of this application,
four non-treaty commercial fishermen have been
found guilty of contempt for fishing contrary to
the injunctive order of the court and have each
been sentenced to 60 days in jail. The remainder
are still pending trial. Those individuals who have
been tried and sentenced to jail have appealed to
the Ninth Circuit Court of Appeals for relief.
The State of Washington filed an appeal from
the issuance of the injunctive order of Sep-
tember 27, 1977 and the Puget Sound Gillnetters
Association and the Purse Seine Vessel Owners
Association filed an application for writ of
mandamus with the Court of Appeals for the Ninth
Circuit. The associations challenged:
1. The authority of Judge Boldt to enjrin
fishing by non-treaty fishermen when the fishermen
were not parties to United States v. Washington nor
provided notice of the hearing or and an oppor-
tunity to participate therein prior to the issuance
of the injunction;
2. The authority of Judge Boldt to involve
himself in the management of the salmon resource;
16
3. The authority of Judge Boldt to enforce a
non-self-executing treaty for which no implementing
legislation had been adopted;
4. The correctness of Judge Boldt's interpre-
tation and implementation of treaty rights as a
result of the treaty provisions allowing "the
right of taking fish at all usual and accustomed
grounds and stations, is further secured to said
Indians in common with all citizens of the terri-
tory;"
5. The utilization of a federal agency in a
manner not authorized by that agency's enabling
statutes.
The Ninth Circuit Court of Appeals, United
States v. Washington III, found:
1. That Judge Boldt's interpretation of
the Indian treaties was within his equitable
powers;
2. That commercial fishermen were in privity
with the State and therefore their interest was
represented by the State in the litigation and the
court could proceed directly against the fishermen;
and
17
3. That the treaties are self-executing.
Petitioners are commercial fishing associa-
tions which represent a majority of the commercial
salmon harvesters in Puget Sound. Judge Boldt's
orders since his original decision in 1974 have
resulted in the reduction of fishing time in South
Puget Sound by non-treaty commercial net fishermen
from a pre-1974 authorization of in excess of 130
days to an authorization in 1976 of three days for
the total season. If similarly restricted in the
future, the approximately 2,000 commercial net
fishermen on Puget Sound will be financially
ruined.
On December 7, 1977, Judge Boldt ordered
the State of Washington to not issue any net
salmon fishing licenses for 1978 or subsequent
seasons. He set a hearing on the United States'
motion for an injunction comparable to the one
issued in 1977 and ordered any individual or
Organization wishing to appear at that hearing to
file a Notice of Appearance and a Memorandum
setting forth objections to the proposed 1978
injunction, copies of this order and the proposed
18
injunction were served on a large number of commer-
cial fishermen. A hearing on the proposed injunc-
tion for 1978 and subsequent salmon fishing seasons
was held on April 5, 6, and 24, 1978. A number of
commercial fishermen appeared at that hearing with
two being represented by counsel. The court
allowed the fishermen appearing to make a statement
but refused the fishermen the right to call] witnes-
ses on their behalf and the right to examine
witnesses. Following the hearing, a preliminary
injunction was issued for the enforcement of
limitations on non-treaty salmon fisheries for 1978
and subsequent seasons. The order provided among
other matters:
1. That Puget Sound by nor-treaty fishermen
were prohibited from net fishing at all times
unless authorized by Judge Boldt;
2. That personnel of the National Marine
Fisheries Service, and the Coast Guard, may board
fishing vessels for the purpose of investigating
Suspected violations of this injunction;
.
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er OR
19
3. That the Coast Guard and National Marine
Fisheries Service shall serve copies of the injunc-
tion on fishermen; and
4, That the State of Washington is required
to cite any fisherman fishing contrary to Judge
Boldt's orders.
VI.
REASONS FOR GRANTING WRIT OF CERTIORARI
On February 12, 1974, Judge Boldt rendered
"final decision number 1" in United States v.
Washington, 384 F. Supp. 312 (1974). Although the
decision was quite lengthy (110 pages) it was
primarily a recitation of facts and a restatement
of Indian treaty law. Two aspects of the decision,
however, were substantial departures from the
existing body of judicial decision, and have
resulted in chaos in the management of the Puget
Sound Salmon fisheries. Judge Boldt:
A. Exempted to a large degree Indian fisher-
men from the regulatory authority of the State
Management Agency;
20
B. Quantified the treaty Indians opportunity
to fish.
Judge Boldt based his decision on the follow-
ing treaty clause: “The right of taking fish at
all usual and accustomed grounds and stations is
secured to said Indians in common with all citizens
of the territory; ..."
Judge Boldt in his original decision relied
upon an 1862 edition of Webster's American Diction-
ary of the English language and found that the term
“jn common with" entitled treaty fishermen to the
opportunity to take up to 50% of the harvestable
number of fish that may be taken by all fishermen
at usual and accustomed grounds and stations. See
United States v. Washington, 384 F. Supp. 312,
343, 356 (1974). Judge Boldt also found that the
State of Washington could not use its laws and
regulations to manage fishing by treaty fishermen
unless it could be shown that such restrictions
were reasonable and necessary to preserve and
maintain the resource and that all non-treaty
fishermen had first been fully restrained from
fishing. See United States v. Washington, supra,
21
at 342, 405-409. The judgment of the lower court
was appealed to the Court of Appeals for the Ninth
Circuit. That court in its decision United States
v. Washington, 520 F.2d 676 (1976), examined Judge
Boldt's interpretation of the “in common with"
clause and found that it was not an abuse of his
equitable powers to apportion the opportunity to
harvest fish. In emphasizing the importance’ that
the apportionment be of opportunity rather than
fish, however, the court of appeals stated:
The District Court's apportionment does
not purport to define property interest in
the fish; fish in their natural state remain
free of attached property interest until
reduced to possession. Rather the Court
decreed an allocation of the opportunity
to obtain possession of a portion of the
run.
520 F.2d at 687 (citations omitted).
Tne United States Supreme Court denied an
application for writ of certiorari to review the
decisions of Judge Boldt and the Ninth Circuit
Court of Appeals. United States v. Washington,
423 U.S. 1086 (1976).
Judge Boldt retained jurisdiction of the
matter and has, since the decision, effectively
22
become the sole manager of the Puget Sound salmon
resource. During his retention, however, he
has substantially altered his 1974 decision. It
is the substantial alterations which are the
basis for this application for writ of certiorari.
The orders which are challenged here guarantee an
actual number of fish to the treaty Indians rather
than guaranteeing them an “opportunity” to partici-
pate in the harvest of salmon at their usual and
accustomed fishing grounds. In his Memorandum,
Order and Preliminary Injunction (Appendix F) Judge
Boldt set out actual numbers of fish to be har-
vested by treaty and non-treaty fishermen. He did
this both in terms of absolute numbers and per-
centages. Then, in order to effect this allocation
of fish, Judge Boldt proceeded from his original
concept of restricting the State of Washington in
its management of treaty fishermen to directly
prohibiting non-treaty fishermen from harvesting
salmon (See Appendices H and £).
Despite these substantial changes by Judge
Boldt in his interpretation of treaty entitlements
thai nae
23
and methods of implementation, the court of appeals
refused to review the interpretation of the Indian
treaties which Judge Boldt has now made.
The court of appeals did reaffirm its incor-
rect belief that Judge Boldt's interpretation
of the treaty is defensible as an appropriate
use of his equitable power. United States v.
Washington III, Appendix B-1.
The court found that the guarantee of fish
to treaty Indians was an equitable partitioning of
a co-tenancy. Aside from the fact that it is
wholly inappropriate to apply this concept to a
wildlife resource (See United States v. Washington
III, Appendix B-22 concurring opinion Judge
Kennedy), the any use of equity concepts in inter-
preting Indian treaties is incorrect.
In Choctaw Nation of Indians v. United States,
318 U.S. 423 (1943), the Supreme Court after
acknowledging the liberal view relied on below
went on to say, in reversing the lower court
decision which was based upon "findings" of Indian
intent:
24
But even Indian treaties cannot be re-
written or expanded beyond their clear
terms to remedy a claimed injustice or to
achieve the asserted understanding of the
parties. [Citations omitted].
318 U.S. at 432. See also, Confederated Band of
Ute Indians v. United States, 330 U.S. 169 (1947);
United States v. Choctaw Nation, 179 U.S. 494
(1900).
The court of appeals and Judge Boldt are
destroying an industry and a resource with a
wrong interpretation of Indian treaties.
A. The Conflict of Decisions by the Washington
supreme Court and Judge boidt Kequire 1s
Court s Review
There is presently before this Court an
application for writ of certiorari, cause no.
77-983, in the matter of Washington State Commer-
cial Passenger Fishing Vessel Association v.
Tollefson, 89 Wn.2d 276, _ P.2d __—s.(1977) and
Puget Sound Gillnetters Association v. Moos, 88
Wn.2d 677,565 P.2d 1151 (1977). In these decisions
the Washington State Supreme Court found that the
various Indian treaties with their “in common with"
25
Clauses guarantee to the Indians access to their
usual and accustomed fishing places and prohibit
restraints on Indian fishing at those places except
to the extent that regulations which are necessary
conservation measures restrain the fishing rights
of all citizens. The court rejected Judge Boldt's
decision which interprets the treaties as granting
an absolute number or percentage of fish to
Indians. The results of these conflicting deci-
sions in the state and federal courts have been
disastrous in terms of impact upon the salmon
resource and the salmon fishing industry. Some
non-treaty commercial fishermen relying upon the
protection of the decision of the Washington State
Supreme Court have attempted to participate in the
harvest of salmon in Puget Sound. They have been
charged with contempt by Judge Boldt and sentenced
to jail. Some have attempted to comply with Judge
Boldt's orders and have been financially ruined.
Judge Boldt has ordered various Federal agencies
to interdict this fishery. The result has been
an enforcement and management nightmare resulting
26
in gun point confrontations and, in at least one
case, the near loss of human life. Federal agents,
ill-equiped and unknowledgeable in the problems
of fisheries management, are confronted by commer-
cial fishermen whose economic life is dependent
upon their fishing consistent with the Washington
State Supreme Court rulings and in violation of
Judge Boldt's orders. The resolution of this
conflict in judicial decisions lies exclusively
with the United States Supreme Court. As the
Washington Supreme Court stated in Washington State
Commercial Passenger Fishing Vessel Association v.
Tollefson, 87 Wn.2d 417, 421, 553 P.2d 113 (1977):
The resolution of this question cannot
come from this court or the Federal District
Court, if no definitive authority upon the
subject exists. It must come from a higher
court whose decisions are binding on both of
us. In short this dilemma can be resolved
only by the Supreme Court of the United
States . . « e
Perhaps the most compelling reason for this
Court to review the lower court's interpretation
and implementation of the Indian treaties is the
absolute frustration felt by the non-treaty com-
mercial fishermen as a result of their attempts
27
to utilize the judicial system to protect their
industry. They first sought protection in their
state supreme court. That court agreed with
them only to have Judge Boldt use federal executive
agencies to neutralize the decision. They then
soucht relief in the United States court of appeals
where two of those judges stated: “It has not been
clearly demonstrated that the rule of 50% appor-
tionment is a necessary and proper implementation
of [the Indians] treaty right." (Concurring Opin-
ions of Judges Wallace and Kennedy. Appendix B-22
- B-30).
Despite two appellate court determinations
that Judge Boldt's decision is not “proper” it
continues to be enforced. The fishermen cannot
understand why these courts agree with them and
they still receive no relief from their plight.
B. The Lower Court Has Decided A Federal Question
Contrary to Past Vecisions of [nis Court
The United States Supreme Court has been
called upon on numerous occasions to interpret the
treaty provision which is at issue here. See
28
United States v. Winans, 198 U.S. 371, 49 L. Ed.
1089 (1905) (Winans); Tulee v. Washington, 315
U.S. 681, 861 L. Ed. 1115 (1941) (Tulee); Puyallup
Tribe of Indians v. Department of Game, 391 U.S.
392, 20 L. Ed. 2d 689 (1968) (Puyallup I); Depart-
ment of Game v. Puyallup Tribe, Inc., 414 U.S.
44, 38 L. Ed. 2d 254 (1973) (Puyallup II); Puyallup
Tribe, Inc. v. Department of Game of the State of
Washington, 45 L. Week 4837 (1977) (Puyallup
III).
In Winans, the Court found that “the right of
taking fish at all usual and accustomed places in
common with the citizens of the territory" was a
guarantee of access to the fishing grounds to the
Indians.
In Tulee, the Court found that the treaty
provision leaves the state with power to impose
on Indians equally with others such restrictions
of a purely regulatory nature concerning the time
and manner of fishing outside the reservation as
are necessary for the conservation of fish but it
forecloses the state from charging the Indians a
fee.
29
In Puyallup I the Court found that the right
to fish at all usual and accustomed places may
not be qualified by a state but the manner of
fishing, the size of the take, the restriction of
commercial fishing, and the like may be regulated
by the state in the interest of conservation,
provided, that the regulations meet appropriate
standards and do not discriminate against the
Indians.
In Puyallup II the Court found that the right
of equal protection was implicit in the phrase
"in common with."
Judge Boldt in United States v. Washington
has moved the “in common with" language from being
a shield against State interference with treaty
fishing to becoming an affirmative obligation on
the part of the State and Federal government to
tp guarantee a number of fish to the tribes. This
interpretation is blatantly inconsistent with the
equal protection interpretation found in Puyallup
I and II.
Judge Boldt's attitude toward Puyallup I & II,
however, is reflected in his analysis of
30
these decisions. In United States v. Washington,
384 F. Supp. 312 (1974) at 337-8, Judge Boldt states
in reference to Puyallup I:
If that seeming nonsequiter be the law,
it certainly is deserving of more specific
legal analysis and justification than it
has ever had in any U.S. Supreme Court
decision. ...
It also appears that the United States
Supreme Court has exercised a prerogative
specifically reserved by and to Congress
in the treaties. Congress has never exer-
cised its prerogative to either limit or
abolish Indian treaty right fishing.
C. The Rights Under These Indian Treaties Are an
Important Question of Federal Law Which Should
be settied By [nis Court
Even assuming that Judge Boldt's decision
is not in conflict with the decisions of this
Court, it certainly raises an important question of
federal law which has not been but should be
settled by this Court. Potential destruction of an
industry and a natural resource by judicial fiat
certainly requires at least that the fiat be from
this country's highest court.
31
D. The Lower Court Has Rendered a Decision On
an Important State Question in a Way Ihat Is
In Conflict With State Law and the Decisions
of This Court.
The Washington State Supreme Court in Puget
Sound Gillnetters Ass'n v. Moos, supra, found that
regulations promulgated by the Washington State
Department of Fisheries for the purpose of allo-
cating salmon between user groups and not based
solely upon the need for conservation were beyond
the authority of that agency to act and therefore
void and unenforceable.
Following the decision and with full knowledge
of the state supreme court interpretation of State
law restrictions on the authority of an agency to
act, Judge Boldt ordered:
The defendants [State Department of
Fisheries] are required to enforce the
regulations providing for management and
control for purposes of conservation and
Over the non-treaty allocation share so
that the treaty allocation shall not be
encroached upon.
See, Appendix D, p. D-l.
In ordering a state agency to disobey a
decision of the State's highest court, Judge Boldt
32
is very effectively deciding an important state
question in direct conflict with the applicable
state law.
Judge Boldt's attempt to expand the authority
of a state agency beyond its enabling statues, not
only conflicts with state law, but it is in direct
conflict with the decisions of this Court.
This Court has stated clearly that a federal
court will not compel state governmental officers
to do any act which they are not authorized to do
by the laws of the state from which they derive
their power. Supervisors of Carroll County v.
United States ex rel. Reynolds, 18 Wall 71,
(1873); United States ex rel. Johnston v. County
Court of Clark County, 95 U.S. 769 (1878); Missouri
ex rel. Laclede Gaslight Co. v. Murphy, 170 U.S.
78 (1898).
In Missouri v. Murphy, supra, the Court
Stated at 962: "Mandamus lies to compel a party to
do that which it is his duty to do but can confer
no new authority, and the party to be coerced must
have the power to perform the act."
33
Following at 964, the Court stated:
The street commissioner had no power
under the charter and ordinances to issue
the permit requested in the absence of the
assent of the Board of Public Improvements,
which had general control; and the court
could not command him to do that which it
was not his official duty to perform.
(emphasis added).
E. With the Sanction of the Court of Appeals,
Judge Boldt Has So Far Departed From the
Accepted and Usual Course of Judicial Proceed-
ings As to Call For the Exercise of This
Lourt s Power of Supervision
Judge Boldt fails to recognize any bounds
on his judicial authority. As indicated above,
he had no reluctance in ordering a state agency to
perform acts it clearly was not authorized to do.
But in addition to involving himself in the
management of the State of Washington affairs,
Judge Boldt has undertaken to expand the authority
of the federal executive agencies. Despite the
total lack of any statutory authority to do so,
Judge Boldt has ordered the direct involvement
of the Department of Commerce and the Department
of Transportation in the management of Puget Sound
origin salmon stocks. See Appendices E, H, and C.
34
See also the letter from Terry L. Leitzell, assis-
tant administrator for Fisheries, National Marine
Fisheries Service, to Hon. John E. Cunningham,
Appendix K, which states in part, "[U]nder U.S.
v. Washington, the Executive Branch is required to
adopt strategies which will accomplish the intent
of the decision. . .." The extension of executive
powers beyond the terms and necessary implications
of the statutory grant by a court is wholly im-
proper. Federal Trade Commission v. Raladum Co.,
283 U.S. 643 (1931).
The non-treaty fishermen have a constitu-
tionally protected entitlement to work. Judge
Boldt eliminated this right by giving no notice and
allowing no opportunity to oppose, to present
evidence or to examine witnesses. The court of
appeals justifies this by finding the fishermen "in
privity" with the state, thereby having no right
to due process prior to the loss of their right
to work.
This Court has refused to allow the judicial
use of injunctive powers against a non-party.
Chase National Bank v. City of Norwalk, 291 U.S.
cc ROLL LC LET SLE
35
431 (1934). This Court has condemned the use of
injunctive powers without notice and a hearing.
Carroll v. Presidents and Commissioners of Princess
Anne, 393 U.S. 175 (1968). This Court should not
allow a circumvention of these prohibitions through
such an unsupported theory.
Independent of its impact on the petitioners,
this Court should undertake review of the court of
appeals decision sustaining such broad use of
injunctive powers because of the incredible poten-
tial for abuse. That court found privity because
the fishermen's interest is derivative of the
state's interest. Every corporation in every state
is a derivative of the state. By the logic of the
court of appeals anyone seeking relief from a
corporation then may sue the state of incorporation
and there is no entitlement on the part of the
business of notice or participation in the judicial
hearings and it will be bound by the court decrees
obtained.
36
F. The Effect of United States v. Washington IV
is a Matter of Such Imperative Public Impor-
tance as to Justify Veviation from Norma!
Appellate Process
Writ of certiorari is sought in United States
v. Washington IV pursuant to Rule 20 of this Court
prior to judgment by the court of appeals because
the matter is of such imperative public importance
as to justify the deviation from normal appellate
processes.
The Findings of Fact, Conclusions of Law and
Preliminary Injunction rendered in United States v.
Washington IV, which were appealed to the United
States Court of Appeals for the Ninth Circuit by
Notice of Appeal on July 19, 1978 (Court of Appeals
No. 78-2523) are identical in nature and impact to
the orders which were challenged and examined by
the Court of Appeals in United States v. Washington
III. The orders examined by the court of appeals
were issued for the 1977 fishing season and the
Findings of Fact, Conclusions of Law and Injunc-
tion issued June 6, 1978, will regulate the fishing
season for 1978 and following seasons. A second
PE I 2 PGI rt een a
alia aes
37
review of the same concepts by the court of appeals
would be redundant.
The court of appeals in a decision on other
issues raised in United States v. Washington,
573 F.2d 1118 (1978) (Appendix J) discussed the
issues raised herein:
It must be quite apparent that the case
tendered for our decision here would re-
quire us to address procedural questions
that touch upon fundamental principles
controlling the delicate balance of state
and federal power. Beyond these 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 address-
ing such questions in a hypothetical case
while other pending cases present the
issues in an active context.
573 F.2d at 1121.
Because the court of appeals has already
ruled on the issues raised by the Injunction of
June 6, 1978 and because a resource and an in-
dustry are in immediate jeopardy, it is appro-
priate that this Court deviate from normal appel-
late processes and review the Injunction of June 6,
1978.
38
VII.
CONCLUSION
For the above reasons, writs of certiorari
should issue to review the opinion of the court
of appeals and the Findings of Fact, Conclusions
of Law and Injunction of the lower court.
Respectfully submitted,
MORIARITY, LONG, MIKKELBORG &
BROZ
By CHARLES T. YATES
Attorneys for Puget Sound
GilTnetters Association
JOSEPH T. MIJICH/JOHN P. WORLD
Attorneys for Petitioner
Purse Seine Vessel Owners
Association
APPENDIX A
CONSTITUTIONAL PROVISIONS, TREATIES
ARTICLE I, SECTION 8
POWERS OF CONGRESS. The congress shall have
power to lay and collect taxes, duties, imposts
and excises, to pay the debts and provide for
the common defense and general welfare of the
United States; but all duties, imposts and ex-
cises shall be uniform throughout the United
States;
To borrow money on the credit of the United
States;
To regulate commerce with foreign nations,
and among the several states, and with the Indian
tribes;
To establish an uniform rule of naturaliza-
tion, and uniform laws on the subject of bank-
ruptcies throughout the United States;
To coin money, regulate the value thereof,
and of toreign coin, and fix the standard of
weights and measures;
To provide for the punishment of counter-
feiting the securities and current coin of the
United States;
To establish post offices and post roads;
To promote the progress of science and use-
ful arts, by securing for limited times to
authors and inventors the exclusive right to
their respective writings and discoveries;
To constitute tribunals inferior to the
supreme court;
To define and punish piracies and felonies
committed on the high seas, and offences against
the law of nations;
To declare war, grant letters of marque
and reprisal, and make rules concerning captures
on land and water;
To raise and support armies, but no appro-
priation of money to that use shall be for a
longer term than two years;
Te provide and maintain a navy;
To make rules for the government and regula-
tion of the land and naval forces;
A-2
To provide for calling forth the militia to
execute the laws of the union, suppress insurrec-
tions and repel invasions;
To provide for organizing, arming, and disci-
plining, the militia, and for governing such part
of them as may be employed in the service of the
United States, reserving to the states respec-
tively, the appointment of the officers, and the
authority of training hte militia according to
the discipline prescribed by congress;
To exercise exclusive legislation in all
cases whatsoever, over such district (not exceed-
ing ten miles square) as may, by cession of parti-
cular states, and the acceptance of congress,
become the seat of the government of the United
States, and to exercise like authority over all
places purchased by the consent of the legisla-
ture of the state in which the same shall be, for
the erection of forts, magazines, arsenals, dock
yards, and other needful buildings; and
To make all laws which shall be necessary and
proper for carrying into execution the foregoing
powers, and al other powers vested by this Consti-
tution in the government of the United States,
Or in any department or officer thereof.
ARTICLE 2, SECTION 2
POWERS OF THE PRESIDENT. The president shall
be commander in chief of the army and navy of the
United States, and of the militia of the several
states, when called into the actual service of the
United States; he may require the opinion, in
writing, of the principal officer in each of the
executive departments, upon any subject relating
to the duties of their respective offices, and he
shall have power to grant reprieves and pardons
for offences against the United States, except in
cases of impeachment.
He shall have power, by and with the advice
and consent of the senate, to make treaties, pro-
vided two-thirds of the senators present concur;
and he shall nominate, and by and with the advice
A-3
and consent of the senate, shall appoint ambassa-
dors, other public ministers and consuls, judges
of the supreme court, and all other officers of
the United States, whose appointments are not
herein otherwise provided for, and which shall
be established by law: but the congress may
by law vest the appointment of such inferior
officers, as they think proper in the president
alone, in the courts of law, or in the heads of
departments.
The president shall have power to fill up all
vacancies that may happen during the recess of
the senate, by granting commissions which shall
expire at the end of their next session.
§ 3 POWERS AND DUTIES OF THE PRESIDENT. He
shall from time to time give to the congress in-
formation of the state of the union, and recommend
to their consideration such measures as he shall
judge necessary and expedient; he may, on extra-
ordinary occasions, convene both houses, or either
of them, and in case of disagreement between them,
with respect to the time of adjournment, he may
adjourn them to such time as he shall think pro-
per; he shall receive ambassadors and other public
ministers; he shall take care that the laws be
faithfully executed, and shall commission all
the officers of the United States.
ARTICLE III
§ 1 JUDICIAL POWER, TENURE OF OFFICE. The
judicial power of the United States, shall be
vested in one supreme court, and in such inferior
courts as the congress may from time to time or-
dain and establish. The judges, both of the
supreme and inferior courts, shall hold their
offices during good behavior, and shall, at stated
times, receive for their services, a compensation,
which shall not be diminished during their contin-
uance in office.
§ 2 JURISDICTION. The judicial power shall ex-
tend to all cases, in law and equity, arising under
A-4
this Constitution, the laws of the United States,
and treaties made, or which shall be made, under
their authority; to all cases affecting ambassa-
dors, other public ministers and consuls; to all
cases of admiralty and maritime jurisdiction; to
controversies to which the United States shall be
a party; to controversies between two or more
states; between a state and citizens of another
state; between citizens of different states, be-
tween citizens of the same state claiming lands
under grants of different states, and between a
state, or the citizens thereof, and foreign
states, citizens or subjects.*
In all cases affecting ambassadors, other
public ministers and consuls, and those in which
a state shall be party, the supreme court shall
have original jurisdiction. In all the other
cases before mentioned, both as to law and fact,
with such exceptions, and under such regulations
as the cougress shall make.
The trial of all crimes, except in cases of
impeachment, shall be by jury; and such trial
shall be held in the state where the said crimes
shall have been committed; but when not committed
within any state, the trial shall be at such
place or places as the congress may by law have
directed.
*Note: Clause changed by Amendment XI.
AMENDMENT V
RIGHTS OF ACCUSED IN CRIMINAL PROCEEDINGS.
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a present-
ment or indictment of a grand jury, except in
cases arising in the land or naval forces, or in
the militia, when in actual service in time of
war or public danger; nor shall any person be
subject for the same offense to be twice put in
jeopardy of life or limb, nor shall be compelled
CT eal t hak
A-5
in any criminal case to be a witness against him-
self, nor be deprived of life, liberty, or prop-
erty, without due process of law; nor shall pri-
vate property be taken for public use, without
just compensation.
TREATIES
TREATY OF MEDICINE CREEK
December 26, 1854
10 Stat. 1132
ARTICLE IIlL. The right of taking fish, at
all usual and accustomed grounds and stations, is
further secured to said Indians, in common with
all citizens of the Territory, and of erecting
temporary houses for the purpose of curing, to-
gether with the privilege of hunting, gathering
roots and berries, and pasturing their horses on
open and unclaimed lands: Provided, however, That
they shall not take shell fish from any beds
staked or cultimvated by citizens, and that they
shall alter all stallions not intended for breed-
ing horses, and shall keep up and confine the
latter.
TREATY OF POINT ELLIOTT
January 22, 1855
12 Stat. 927
ARTICLE V. The right of taking fish at usual
and accumstomed grounds and stations is further
secured to said Indians in common with all citi-
zens of the Territory, and of erecting temporary
houses for the purpose of curing, together with
the privilege of hunting and gathering roots and
berries on open and unclaimed lands. Provided,
however, that they shall not take shell-fish from
any beds staked or cultivated by citizens.
A-6
TREATY OF POINT NO POINT
January 26, 1855
12 Stat. 933
ARTICLE 4. The right of taking fish at usual
and accustomed grounds and stations is further se-
cured to said Indians, in common with all citizens
of the United States and erecting temporary houses
for the purpose of-curing; together with the priv-
ilege of hunting and gathering roots and berries
on open and unclaimed lands. Provided, however,
That they shall not take shell-fish from any beds
staked or cultivated by citizens.
TREATY WITH THE MAKAH (TREATY OF NEAH BAY)
January 31, 1855
12 Stat. 939
ARTICLE IV. The right of taking fish and
of whaling or sealing at usual and accustomed
grounds and stations is further secured to said
Indians in common with all citizens of the United
States, and of erecting temporary houses for the
purpose of curing, together with the privilege
of hunting and gathering roots and berries on open
and unclaimed lands: Provided, however, That they
shall not take shell-fish from any beds staked
or cultivated by citizens.
TREATY WITH THE QUINAIELTS
July 1, 1855
12 Stat. 971
ARTICLE III. The right of taking fish at all
usual and accustomed grounds and stations is se-
cured to said Indians in common with all citizens
of the Territory, and of erecting temporary houses
A-7
for the purpose of curing the same; together with
the privilege of hunting, gathering roots and
berries, and pasturing their horses on all open
and unclaimed lands. Provided, however, That
they shall not take from any beds staked or culti-
vatged by citizens; and provided, also, that they
shall alter all stallions not intended for breed-
ing, and shall keep up and confine the stallions
themselves.
TREATY WITH THE YAKIMAS
June 9, 1855
12 Stat. 951
ARTICLE IIlL. And provided, That, if neces-
sary for the public convenience, roads may be run
through the said reservation; and on the other
hand, the right of way, with free access from the
same to the nearest public highway, is secured to
them; as also the right, in common with citizens
of the United States, to travel upon all public
highways.
The exclusive right of taking fish in all
the streams, where running through or bordering
said reservation, is further secured to said
confederated tribes and bands of Indians, as also
the right of taking fish at all usual and accus-
tomed places, in common with citizens of the Terri-
tory, and of erecting temporary buildings for
curing them; together with the privilege of hunt-
ing, gathering roots and berries, and pasturing
their horses and cattle upon open and unclaimed
land.
APPENDIX B
OPINION
ee PSGA v. U.S. DISTRICT COURT
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PUGET SOUND GILLNETTERS ASSOCIATION,
et al.,
Petitioners,
Ve
No. 77-3129
eh ke UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF WASHINGTON,
Respondent,
UNITED STATES OF AMERICA,
, he et al.,
Real Parties in Interest.
COLUMBIA RIVER FISHERMEN'S
PROTECTIVE UNION, INC., et al.,
Petitioners~-Appellants,
Vv.
No. 77-3208
No. 77-3209
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF OREGON,
Respondent,
and
UNITED STATES OF AMERICA, et al.,
Real Parties in Interest-
Appellees.
No. 77-3654
No. 77-3655
UNITED STATES OF AMERICA, et al.,
Plaintiffs-Appellees,
v.
STATE OF WASHINGTON, et al.,
Defendants-Appellants.
ee Nf tf NN I I
OPINION
B-2
Appeal from the United States District Court
for the Western District of Washington
Before: GOODWIN, WALLACE, and KENNEDY, Circuit
Judges.
GOODWIN, 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 Dis-
trict 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, 385 F. Supp. 312 (W.D. Wash.
1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert.
denied, 423 U.S. 1086 (1976); Sohappy v. Smith,
302 F. Supp. 899 (D. Or. 1969); United States v.
Oregon, 529 F.2d 570 (9th Cir. 1976). The geo-
graphic areas covered 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 incorporated
in a final decree of the District Court, Order of
February 28, 1977, United States v. Oregon. That
case retains minor problems of enforcement.
Agencies of the State of Washington and vari-
ous of its constituencies continue to attack the
judgment in United States v. Washington. Accord-
ingly, 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 desegration cases (see Morgan v. Kerrigan,
530 F.2d 401 (lst Cir.), cert. denied sub nom.
McDonough v. Morgan, 426 U.S. 935 (1976); Morgan
v. McDonough, 540 F.2d 527 (lst Cir. 1976), cert.
B-3
denied, 429 U.S. 1042 (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 of-
fered 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, but 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 econo-
mies 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 in-
structions from the federal government, Governor
Isaac Stephens of Washington Territory negotiated
a series of treaties in 1854-55 to achieve set-
tlement goals.
The treaties followed a pattern, the Treaty
of Medicine Creek, 10 St'at. 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 com-
mon 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
B-4
treaties did not grant the tribes anything;
rather, the tribes granted the United States a
vast expanse of land, reserving to themselves cer-
tain interests in it and in its profits a
prendre.! The negotiations and treaties show
that the right to take fish was to the Indians
one of the most important rights reserved.
These rights were reserved, not by the indi-
viduals who happened to be alive in 1854 or 1855,
but by tribes, with which the United States treated
as sovereign entities.2 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 Constitution, 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, 3l U.S. (6 Pet.)
515, 557-60 (1832). All Indians are now citi-
zens of the United States, 8 U.S.C. § 1401(a)(2),
and the United States has not made treaties with
the tribes since 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.
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 (1973), it
Overturned a state tax on income earned by a
réservation 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
B-5
remain a separate people, exempted from many laws
of the state within whose borders they live. 411
U.S. at 172-73. In Morton v. Mancari, 417 U.S. 535
(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, given to “members of
quasi-sovereign tribal entities," 417 U.S. at 554.
In United States v. Mazurie, 419 U.S. 544 (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.
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, v.8. ‘ , 46
U.S.L.W. 4243, 4246 (1978).
II Equal Protection
The state and the non-Indian fish catchers
argue that to treat Indian fish catchers differ-
ently 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 from this back-
ground 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
B-6
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 enti-
ties, to hold those reserved rights.
As we pointed out in United States v. Washing-
ton, 520 F.2d at 685, the treaties established
something anaiagees to a cotenancy in the off-reser-
vation 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 prop-
erty law applied to changing numbers within co-
tenant classes.
Treaty fishers fish under the regulation of
one quasi-sovereign, nontreaty fishers under the
regulation of another. The rights of each sover-
eign are reserved or granted in the treaties, as
the district court and this court have authorita-
tively construed them. These principles, applied
in good faith, should answer most of the state's
arguments; the problem is then one of enforcement.
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.4 The current crisis
is the result of a breakdown in state law enforce-
ment 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,
B-7
that some state prosecutors refused, again with the
vocal approval of their constituents, to prosecute
violations of the regulations 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
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 con-
flicting state court rulings, but a direct confron-
tation would have raised serious questions of
federalism. In an effort to minimize friction in a
delicate state-federal situation without denying
the tribes the rights they 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.
B-8
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 discre-
tion in its allocation of the fishery; we now
extend that holding to recognize its broad discre-
tion 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 allo-
cation of fishing opportunity® between the treaty
and nontreaty fishers intended, for 1977 only, to
provide nontreaty fishers with 55% of the totais
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 v. 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’ associa-
tions 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 protec-
tion. 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.
B-9
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 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 suffi-
cient to preserve the run. Preserving the tribal
Opportunity requires limiting the nontribal oppor-
tunity. In restating this obvious truth, we are
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 Quin-
ault 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
B-10
off-reservation streams which are usual and accus-
tomed 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 accus-
tomed 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.
Since the district court's original decision
the Quinault tribe has been actively developing its
Gray's Harbor fishery, both by increasing its
fishing capacity and by manging 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 conclu-
sion 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
B-11
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 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
{ 15.13[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).*4% 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 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 accus-
tomed 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
B-12
evidence actually presented. 1/2 (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 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. 13
V Binding Nonparties
Several of the district court's orders were
directed to individual fishers and to fishers'
assocations, although these persons and associa-
tions 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 (1896).+%
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 Protec-
tive Union v. City of St. Helens, 160 Or. 654, 661,
B-13
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,
414-15, 502 P.2d 1170, 1172-73 (1972), cert.
denied, 411 U.S. 982 (1973); State ex rel. Bachich
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 legis-
lation concerning its own property and prescribing
the methods which may be used in acquiring it
by private persons." Washington Kelpers Associa-
tion v. State, 81 Wash. at 415, 502 P.2d at ll?3.
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 deriva-
tive of the state's power to regulate rights in the
fish. The fishers' interest is therefore deriva-
tive 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 (1958); Wyoming v. Colorado, 286
U.S. 494, 506-09 (1932).1 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, 16 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 regard to tribal rights or the district
B-14
court's orders. This action went beyond the
Washington Supreme Court's holding that the Depart-
ment 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. Washing-
ton's reliance on 28 U.S.C. § 2283, which limits
injunctions of state court proceedings, is mis-
placed. Section 2283 does not apply when the
United States requests the injunction. Leiter
Minerals, Inc. v. United States, 352 U.S. 220,
224-26 (1957). Nor should the district court have
waited for the state system to resolve 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 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 knowl-
edge 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 (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.
B-15
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 prerogatives.
In Nos. 77-3208 and 77-3129, the applications
for writs of mandamus are dismissed.
. In Nos. 77-3209, 77-3654, and 77-3655, the
judgments are affirmed.
The cases are remanded so that the district
courts may retain continuing jurisdiction.
B-16
PUGET SOUND GILLNETTERS ASSN. et al.
GT. U.8-8 4G. O86.
Nos. 77-3129/3208/3209/3654/3655
FOOTNOTES:
Ithis reservation included customary uses
outside the area ceded. See Seufert Brothers Co.
B-17
expressed by analogy in the earlier case. Obvious-
ly, 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 (1945); Wyomin
v. United States, 249 U.S. 194 (1919).
2tt is questionable whether Anglo-American
concepts of sovereignty existed in these Indian
cultures, or whether the collections of villages
Governor Stephens made for purposes of his negotia-
tions 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 pre-
serving 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 con-
cepts to Indian culture.
3we refer to the cotenancy analogy only
because it is helpful in explaining the rights of
the parties, not because all the rights and inci-
dents 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 equal-
ity of right between two quasi-sovereigns which we
v. Colorado, 2 UeS. 419 (1922). Similar prin-
ciples might apply here with the addition, of
course, of the equality of rights which the trea-
ties 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.
4 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 (1976).
SIn 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 guar-
anteeing tribal Indians equal treatment with other
citizens and stated that the district court's
actions had created a class based on an impermis-
sible 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 miscon-
strued the basic concepts of Indian law and failed
to understand a long line of Supreme Court deci-
sions beginning with United States v. Winans, 198
U.S. 371 (1905).
B-18
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 whether the court would continue to
deny state agencies the authority to allocate under
a correct view of tribal status and rights.
6The 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 dis-
trict 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.
7There 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.
8tThe 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 reason-
able assurances that such limitations would be
enforceable. If the state were able and willing to
regulate its fishery in a way consistent with the
B-19
district court's orders, of course, the sport/com-
mercial fishery issue would be entirely a state
concern so long as tribal fishers had an opportun-
ity to take their treaty shares.
9appellants 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.
10other 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
circumstance allowing the amendment is mandatory.
Wallin v. Fuller, 476 F.2d 1204 (5th Cir. 1973).
Ilthe fact that Gray's Harbor is outside the
area ceded is irrelevant if Quinault Indians cus-
tomarily fished there. Seufert Brothers Company
v. United States, 249 U.S. 194 (1919).
B-20
12nNo 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 sup-
port 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
(1973).
l3the state's only objection to the speci-
fic allocations seems to be based on the equal
protection argument which we rejected above. We
thus have no occasion to decide whether the allo-
cations were within the district court's discre-
tion.
14Douglas v. Seacoast Products, Inc., 431
U.S. 265, 284-85 (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 187-88.
15The 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.
BRP Ferre
B-21
Nebraska v. Wyoming, 295 U.S. 40, 43 (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.
l6The appellants make a number of technical
attacks on the injunctions. We find them to be
without merit. In the context of all the proceed-
ings 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 open-
ings 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.
B-22
RE: PUGET SOUND GILLNETTERS ASSN. v. USDC,
W.D. WASHINGTON, et al., No. 77-3129
COLUMBIA RIVER FISHERMEN'S PROTECTIVE UNION
v. USDC, D. ORE., et al., Nos. 77-3208/3209
UNITED STATES v. WASHINGTON, Nos. 77-3654/3655
KENNEDY, Circuit Judge, Concurring:
The dimensions 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 (1976). However, the court
undertakes to restate the rationale for the appor-
tionment rule of our 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 posses-
sion 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 popula-
tion.2 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
B-23
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 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.4
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 a cotenant to partition provide guidance
for an equitable division of the fish. Effective
use of that remedy presupposes a method of deter-
mining 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 litiga-
tion: definition of the rights recognized by the
treaties, reconciliation of those rivits 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 agree-
ments, 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 under-
standings. The district court undertook to explain
B-24
those understandings in its original decision, and
proper review of its ruling requires a like analy~
sis. 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 resolv-
ing 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.
/s/
United States Circuit Judge
Tren oe
tae
B=25
FOOTNOTES
Footnote 1 (reference page 1)
"For indeed tenancies in common differ in
nothing from sole estates but merely in the blend-
ing and unity of possession." 2 W. Blackstone,
Commentaries *180.
Footnote 2 (reference page 1)
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.
Footnote 3 (reference page 2)
2 American Law of Property § 6.13, at 52-53
(A. J. Casner ed. 1952); R. Powell & P. Rohan,
Powell on Real Property {¢ 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 share
finite resource 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 years 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
B-26
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 that acts which amount to de-
structive 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
follow 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 1051 (1940), while others have held that
the cutting and sale of timber, Fitzhugh v. Nor-
wood, 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), constitutes waste.
In cases following the later 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 trebel damages,
for waste. See generally cases cited above and 2
American Law of Property, supra § 6.15; 2 W. Walsh,
supra Soe,
B-27
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 umreasonable 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 Quicksilver Mining Co., 64 Cal. 134, 27 P.
863 (1883); R. Powell & P. Rohan, supra, 4 647, at
695.
With reference to ouster, a tenant who ex-
cludes his cotenants from the commonly held prop-
erty 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).
Footnote 4 (reference page 2)
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 an accounting for rents and profits
between cotenants may be available when one coten-
ant 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,
B-28
38 R.I. 443, 96 A. 307 (1916) (timber); see Martyn
v. Knowllys, 101 Eng. Rep. 1313 (K.B. 1799).
However, a 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
0 (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 perma-
nent value of the property. Cf. 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 acction for an accounting, a
cotenant who makes improvements on the property
generally may not claim a credit for such expendi-
tures. 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. 2 American
Law of Property, supra note 3, § 6.18, at 83; IV S.
Symons, Pomeroy's Equity Jurisprudence § 1389, at
B-29
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
(1973) (Puyallup II) (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 seri-
ously with reference to the rule of even apportion-
ment, creates more problems than it solves.
Footnote 5 (reference page 2)
cilia ie dani ae. ae
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. Id. at 19-20; E.
Hopkins, supra note 3, § 209, at 336.
Footnote 6 (reference page 2)
See Puyallup Tribe v. Department of Game, 391
U.S. 392, 398 (1968) (Puyallup I).
B-30
Puget Sound Gillnetters Association
ve. USDC - No. 77-3129
Columbia River Fishermen's Protective
Union v. USDC - Nos. 77-3208-3209
United States v. State of Washington
Nos. 77-3654/3655
WALLACE, Circuit Judge, Concurring:
While I sympathectically agree with Judge
Kennedy's statement that "it has not been clearly
demonstrated that the rule of fifty percent appor-
tionment is a necessary and proper implementation
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
(1976).
APPENDIX C
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
UNITED STATES OF AMERICA, et al., ) CIVIL NO. 9213
)
Plaintiffs, )PRELIMINARY IN-
) JUNCTION RE:
vs ENFORCEMENT OF
)LIMITATIONS ON
)NONTREATY SAL-
STATE OF WASHINGTON, et al., MON FISHERIES
)FOR 1978 AND
Defendants. ) SUBSEQUENT
) SEASONS
Upon the motion of the United States, together
with the exhibits, the testimony of witnesses and
the records and files of this case, the court finds
that the State of Washington and its officers and
agencies remain unwilling or unable to carry out
the existing orders of this court and to prevent
certain nontreaty fishermen from taking, under
color of state law and in some cases in defiance
thereof, salmon which under the orders of this
court are to be left available for harvest by the
plaintiff tribes and their members under reserved
rights expressly secured by federal law.
The court further finds that this situation,
if permitted to continue, will frustrate the
decrees of this court, irreparably harm the plain-
tiff tribes and their members by substantially
depriving them of their rights to harvest such
salmon, imperil the perpetuation of the salmon
resource and lead to a breakdown of law and order,
and that to prevent such continuance, only direct
action of this court, including the issuance of and
enforcement of an injunction against certain
nonparties, is required in the form and manner
hereinafter set forth.
C-2
The court also finds that adequate public and/
or personal notice of the hearing on the govern-
ment's motion for an injunction on this matter and
an opportunity to be heard prior to the entry of
any injunction was given to affected nonparties.
The court finds that service of the notice and
invitation to be heard was made by the United
States Marshal's Service on some 2,445 persons who
were State-licensed commercial net salmon fishermen
for 1977, out of a total of 2,700. The court has
considered all relevant points and authorities
presented by such nonparties.
Therefore, it is hereby ORDERED THAT:
1. Fishing in the waters of Puget Sound
and other marine waters easterly of the Bonilla
Point-Tatoosh Line (located at the western end of
the Strait of Juan de Fuca) and their watersheds,
all Olympic Peninsula watersheds, and all Grays
Harbor and its watersheds is subject to the provi-
sions of this order.
2. All gillnet, purse seine and reefnet fish-
ermen licensed by the State of Washington, all
other persons who attempt to net or assist in
netting salmon in any portion of the waters des-
cribed in paragraph 1, the Puget Sound Gillnetters
Association, the Purse Seine Vessel Owners Associ-
ation, Grays Harbor Gillnetters Association, and
all persons in active concert or participation with
them, are hereby enjoined and prohibited from
taking, attempting to take, or offering for sale,
salmon of any species taken from such waters, or
assisting in any of the foregoing, unless such
person has, within the previous twenty-four hours,
ascertained from the National Marine Fisheries
Service telephone "“hot-line" (toll free number:
1-800-562-5672) that such fishing in the area in
which the individual intend to fish is not prohi-
bited by this court at the time of such fishing,
provided that this paragraph shall not apply to
treaty Indians fishing pursuant to tribal regula-
tions promulgated in accordance with the orders of
this court. The National Marine Fisheries Service
shall announce all lawful openings of nontreaty
C-3
fishing and all lawful conservation closures on its
"hot-line" and shall maintain a written copy of all
announcements for a period of at least 60 days
beyond the end of the calendar year in which the
announcement was made.
as All fishermen described in paragraph 2
are hereby prohibited from possessing salmon of a
particular species in any area in which at that
time fishing for that species by such person is
prohibited by paragraph 2 of this order; provided
that this paragraph shall not prohibit fishermen
from transporting salmon caught in an open area
through a closed area for the purpose of selling
the catch.
4. Personnel of the National Marine Fisheries
Service, the Coast Guard, the United States Mar-
shal's Service and the Washington Department of
Fisheries and persons lawfully deputized by any
such agency may board fishing vessels for the
purpose of investigating suspected violations of
this injunction.
5. At the direction of any enforcement agent
described in paragraph 4, all persons described in
paragraph 2 are hereby ordered to stop their
vessels, permit boarding by enforcement agents,
permit themselves and their vessels to be photo-
graphed, permit their catch to be examined, identi-
fy themselves and their vessels to the satisfaction
of the boarding enforcement agents, and produce
either a valid Washington Department of Fisheries
net salmon fishing license or a valid treaty Indian
identification card for the then-current fishing
season which, by this order, all fishermen are
required to carry when engaged in any salmon
fishing activity described in paragraph 2. Any
fisherman failing to identify himself as provided
herein may be placed under arrest and shall be
taken before a United States Magistrate for pro-
ceedings pursuant to Rule 5 of the Federal Rules of
Criminal Procedure.
6. The United States, through the Coast
Guard, the National Marine Fisheries Service, the
United States Marshal's Service, and such other
C-4
agencies as may be appropriate, may serve copies of
this injunction and other relevant orders or
process on fishermen described in paragraph 2. All
Officers and Petty Officers of the United States
Coast Guard and the National Marine Fisheries
Service assigned by their respective superiors to
carry out the provisions of this order are hereby
appointed as process servers and agents of the
court within the meaning of Title 18, United States
Code, Sections 1501 and 1509. The orders, cita-
tions and papers required to be served by enforce-
ment agents under this order are found to be
judicial writs and process of this court within the
meaning of Title 18, United States Code, Sections
1501 and 1509.
7. The State of Washington and the United
States are ordered to maintain reasonable surveil-
lance of the fishing areas affected by this order
and to cite any fishermen who, having had notice of
this injunction, thereafter continues or engages in
any act prohibited by paragraphs 2 or 3 of this
injunction or fails to do any act required by
paragraph 5, to appear before the United States
District Court to be ordered to show cause why he
should not be held in contempt.
8. Nothing in this order shall relieve the
defendant State of Washington or its agencies,
officers and employees of any obligation under
prior orders of this court including, but not
limited to, the obligation under paragraph 8 of the
Injunction of March 22, 1974 (384 F. Supp. at
415-16), to diligently and vigorously enforce, as
far as circumstances permit, their applicable
statutes and regulations in order to safeguard the
fish resources from depletion or destruction due to
unlawful fishing by persons subject to the state's
jurisdiction.
9. The issuance of this injunction is neces-
Sary to prevent irreparable injury to the plaintiff
tribes and their members and to the salmon resource
for which there is no adequate remedy at law.
C=5
10. The issuance of this injunction is neces-
sary in aid of this court's jurisdiction and to
protect or effectuate this court's judgments.
This injunction shall remain in effect until
further order of this court.
IT IS HEREBY SO ORDERED this 6th day of June,
1978.
/s/
George H. Boldt
SR. UNITED STATES DISTRICT
JUDGE
6 AO MT TIS ORM
C-6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
UNITED STATES OF AMERICA, et al., )
) No. 9213
Plaintiffs, )
)
vs )
) FINDINGS OF
) FACT
STATE OF WASHINGTON, et al., )
)
Defendants. )
1. The treaty fishing rights of the plaintiff
tribes have been previously determined by this
Court.
2. Since 1974 there has been increasing
difficulty in enforcing treaty fishing rights.
Denial of treaty fishing opportunity will result in
injury to economic, cultural and governmental
interests of the plaintiff tribes.
3. If the lack of enforcement of treaty
Indian fishing rights by the State of Washington
continues, there will be irreparable harm to the
plaintiffs' rights assured them under the decision
of this court.
4. The evidence has established that there
have been numerous instances of violations of State
regulations designed to allocate additional fish to
treaty Indians, but there has been a lack of
enforcement against these violators, either due to
State court decisions or the enforcement policies
set by the Washington State Department of Fish-
eries.
5. The State of Washington has indicated
through its court decisions, and through its
executive policy, that the Director of the Depart-
ment of Fisheries is not empowered to promulgate
the regulations allocating additional fishing
opportunity to treaty Indians as required by the
decision of this court.
C-7
6. The Washington Department of Fisheries
did not assist in issuing citations or serving the
enforcement injunction during 1977.
7. An emergency exists because of the State
of Washington's continuing inability and unwilling-
ness to assume its regulatory and enforcement
responsibilities under Final Decision 1. This
mandates the creation of a federally-led enforce-
ment group, which needs time to develop a compre-
hensive enforcement plan for the upcoming season.
8. Alternativ.s to direct injunction of non-
treaty fishermen which have been used by this Court
in previous years to obtain compliance with its
orders have not sufficiently deterred violations of
those orders, nor provided adequate additional
fishing opportunities to treaty tribes.
9. Although the Court may speculate that if
no injunction were issued, there might be less
havoc in the fishery, that is not the test. The
test is whether or not treaty fishing rights can be
effectuated without the entry of the injunction.
No alternative plan which contemplates enforcement
of treaty fishing rights has been presented.
10. The Court has the authority to enjoin the
fishermen who are non-parties in this case. Rule
65(d) of the Federal Rules of Civil Procedure does
not enumerate the only non-parties who may be
enjoined. See also, Puget Sound Gillnetters
Association v. United States District Court for the
Western District of Washington, F.2d __,_~No.
773129 (9th Cir. Apr. 24, 1978).
1l. Notice of this hearing has been given to
approximately 2,455 of the 2,700 commercial net
fishermen directly affected by the proposed injunc-
tion. Additionally, the Puget Sound Gillnetters
Association, the Purse Seine Vessel Owners Associa-
tion and the Grays Harbor Gillnetters Association
have been given notice. Several of these non-
parties have appeared and have been given the
opportunity to address the Court and to present
evidence. The fact that they are not parties to
this lawsuit has placed restrictions on the scope
of their participation.
c-8
12. None of the non-party associations or per-
sons asked for intervention in connection with this
proceeding. Under the reference to the Magistrate,
there was no power for him to grant the status of
party to a non~party.
13. Although both the United States and the
plaintiff tribes offered to make witnesses avail-
able to the non-party participants, none took
advantage of this offer.
14. Although the implementation of the treaty
rights as determined in Final Decision 1 neces-
sarily diminishes the opportunity of the non-treaty
fishermen to harvest fish, that fact is not con-
trolling.
15. Until a better solution arrives through
agreement by the parties, congressional action, or
the willingness of the State of Washington and its
courts to assume the State's management and en-
forcement responsibilities as directed by Final
Decision 1, this Court, in its continuing jurisdic-
tion over the resource, must provide for protection
of treaty fishing rights.
16. It is appropriate to limit those circum-
stances under which enforcement officers may board
fishing vessels for purposes of investigating
violations of the injunction to those situations
where they have probable cause to believe that a
violation has occurred.
17. The nature of the fishery is such that an
effective Management and enforcement system must
provide the ability to open and close the fishery
on short notice.
18. The enforcement injunction presented by
the Government provides a reasonable means by which
to notify the fishermen of lawful openings and
closings.
19. A toll-free telephone “hotline” has been
used to announce fishing regulations in the State
of Washington for several years.
20. Statements of several of the fishermen
who appeared before this Court indicate that
widespread resistance to recognizing treaty fishing
rights still exists.
C-9
21. Voluntary reductions in non-Indian fishing
are unlikely. An individual fisherman wishing to
make a good faith effort to comply with Final
Decision 1 cannot do so unless some government
tells him when he may fish without infringing on
treaty rights. The State of Washington will not do
this.
22. Because the non-treaty marine fishing
fleet is much larger and more efficient than the
treaty fleet, and because much Indian fishing
occurs in the terminal areas, substantial curtail-
ment of the marine fishing opportunity for non-
treaty fishermen is necessary in order to permit
treaty fishermen the opportunity to catch the share
of the runs to which they are entitled.
23. During the 1976 and 1977 fishing seasons
the Washington State Department of Fisheries
developed a policy of not issuing citations to
violators of allocation closures.
24. The Washington State Department of Fish-
eries has the power to regulate the fishermen it
controls in such a way as to shift the burden of
providing treaty Indian fishing rights away from
the net fishermen and spreading it to the hook-and-
line fishermen by controlling their seasons, bag
limits, gear type, and otherwise restricting
hook~and-line fishing.
25. During the 1977 fishing season, there
was a substantial amount of fishing during conser-
vation closures. While most of this fishing was
done by non-treaty fishermen, the State of Washing-
ton cited over 100 treaty Indians for fishing in
violation of conservation closures as defined by
the Washington Department of Fisheries.
26. During 1976, over 135,000 fish were taken
in violation of State regulations,and during 1977,
over 183,000 were taken by fishermen licensed by
the State of Washington.
DATED this 6th day of June, 1978.
/s/
UNITED STATES DISTRICT
JUDGE
C-10
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
UNITED STATES OF AMERICA, et al.,
No. 9213
Plaintiffs,
OF LAW
STATE OF WASHINGTON, et al.,
)
)
)
)
)
: CONCLUSIONS
)
)
Defendants. )
)
1. In order to provide treaty Indians with
the opportunity to catch 50% of the salmon return-
ing to their usual and accustomed grounds, it is
necessary to provide them with substantial exclu-
Sive fishing time.
2. Because of State Court interpretation of
its regulatory authority, the Washington State
Department of Fisheries will not promulgate regula-
tions giving treaty Indians exclusive fishing time.
3. The failure to provide treaty Indians with
Substantial exclusive fishing time will cause them
irreparable harm to their right to the Opportunity
to catch 50% of the salmon returning to their usual
accustomed grounds.
4. The rights of the treaty and non-treaty
fishermen have already been adjudicated, therefore
economic disruption associated with imp lement ing
the 1974 decree is not legally cognizable. Weigh-
ing the relative legally cognizable hardships, the
Court finds that the plaintiffs would be more
damaged if this injunction were not entered than
the defendants and non-party fishermen will be by
its entry.
5. It is probable that the plaintiffs would
succeed at a trial on the meritss
6. The public interest will be served by
entry of this injunction in that United States
C-11
treaty obligations will be upheld, United States
District Court orders will be enforced and a
breakdown of law and order will be prevented.
7. Fixed pre-season regulations are impossi-
ble due to the nature of the fishery.
8. In order to insure that exclusive treaty
Indian fishing time can be provided, there must be
a means by which this Court can order non-treaty
commercial fishermen not to fish during time when
treaty Indians are fishing.
9. A mechanism for authoritatively informing
the fishermen of lawful fishing times must be
established before the fishing season.
10. The mechanism provided for in the Govern-
ment's proposed order is reasonable.
ll. An allocation of the fishing opportunity
between treaty and non-treaty fishermen, and
enforcement of that allocation is an appropriate
exercise of this Court's discretion. Department of
Game v. Puyallup Indian Tribe, 414 U.S. 44 (1973);
Puyallup Indian Tribe v. Department of Game, 97
S.Ct. 2626 (1977); United States v. Washington, 520
F.2d 676 (9th Cir. 1975).
12. This Court has the authority and the duty
to protect and effectuate its prior judgments.
Brown v. Board of Education, 394 U.S. 294 (1955);
Cooper v. Aaron, 358 U.S. 1 (1958); Doe v. Ceci,
517 F.2d 1203 (7th Cir. 1975); United States v.
Texas, 306 F. Supp. 469 (E.D. Texas 1972), aff'd,
495 F.2d 1250 (Sth Cir. 1974); Bullock v. United
States, 265 F.2d 683 (6th Cir.), cert. denied, 360
U.S. 909 (1959).
13. This Court has broad discretion to fashion
remedies which will protect and effectuate its
earlier rulings, the more so when public interest
and the rights of a large group of people are
involved. Virginia Railroad Co. v. System Federa-
tion, 300 U.S. 515 (1937); Golden State Bottling
Co. v. N.L.R.B., 414 U.S. 168 (1973).
14. This Court is empowered to issue all
writs necessary or appropriate in aid of its
jurisdiction which are agreeable to the usages and
principles of law. Title 28, United States Code,
Section 1651.
C-12
15. This Court is empowered to punish disobe-
dience or resistance of its lawful orders and
decrees. Title 18, United States Code, Section
401.
16. In limited and extraordinary circumstances,
this Court may enjoin individuals who are not
formal parties to this action where they have
notice of this Court's orders, they intentionally
violate those orders, they are members of a class
who cannot realistically be specified in advance of
such violations, and their actions violate the
rights of a large class of plaintiffs, interfere
with the obligations and ability of defendants to
comply with this Court's orders, create conditions
of lawlessness and chaos in the community and
interfere with this Court's ability to adjudicate
the rights and responsibilities of the parties
before it. Kasper v. Brittain, 245 F.2d 92 (6th
Cir.), cert. denied, 355 U.S. 834 (1957); Bullock
v. United States, supra; United States v. Hall, 472
F.2d 261 (5th Cir. 1972); N.L.R.B. v. Sunshine
Mining Co., 125 F.2d 757 (9th Cir. 1942).
17. This Court may enjoin individuals who are
not parties to the lawsuit when they are in privity
with one of the parties; that is, when the party is
representing the interests and advocating the
position of the non-party. Puget Sound Gillnetters
Association, et al. v. United States District
Court, F.2d , NO. 77-3129 (9th Cir., April
24, 1978); City of Tacoma v. Taxpayer of Tacoma,
357 U.S. 320, 340-1 (1957); New Jersey v. New York,
345 U.S. 369 (1953).
16. The orders of this Court directed toward
the State of Washington are binding on its citi-
zens. Such action is appropriate in this case
because the litigation has adjudicated the right of
the State of Washington to authorize the harvest of
anadromous fish and the rights of all its citizens
to harvest those fish. Arizona v. California, 373
U.S. 546 (1963); City of Tacoma v. Taxpayers of
Tacoma, stipra; Wyoming v. Colorado, 2386 U.S. 494
(1932); New Jersey v. New York, supra; Kentucky v.
Indiana, 28 U.S. 163 (1930).
C-13
19. The fact that the fishermen were not parti-
cipants in the litigation leading up to Final
Decision 1 does not prevent them from being bound
by it. The State of Washington represented, and
continues to represent, all of the non-treaty
fishermen in this litigation. Puget Sound Gill-
netters Ass'n, et al. v. United States District
Court, F.2d , No. 77-3129 (9th Cir., April
2, 1978). track
20. This Court may enjoin interference with
property which is under the control of this Court,
and punish violations of such injunctions. Board
of Governors v. Transamerica Corp., 184 F.2d 311
(9th Cir. 1950); Im re Lustron Corp., 184 F.2d 789,
798 (7th Cir. 1950), cert. denied, 340 U.S. 946
(1951); 7 J. Moore Federal Pratice ¢ 65.12, n. 1
(1976); State v. Terry, 99 Wash. 1 (1917).
THEREFORE, IT IS ORDERED that the injunction shall
issue.
DATED this 6th day of June, 1978.
/s/
SENIOR UNITED STATES
DISTRICT JUDGE
APPENDIX D
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASH: NGTON
AT TACOMA
UNITED STATES OF AMERICA, et al., ) NO. 9213
)
Plaintiffs,) PRELIMINARY
) INJUNCTION
Vv ) STAYING STATE
) COURT INJUNC-
) TION AND ORDER
STATE OF WASHINGTON, et al., ) IMPLEMENTING
) PRELIMINARY
Defendants.) INJUNCTION
)
This matter having come on regularly before
the Court on Plaintiffs' motion for a preliminary
injunction staying state court injunction and for
an order implementing the preliminary injunction,
and the Court having considered the memoranda, oral
argument of counsel and the record in this case,
the Court makes the following Findings of Fact and
Conclusions of Law and on the basis thereof, issues
the following Orders:
FINDINGS OF FACT
Rs In an effort to assure plaintiff tribes their
federally guaranteed treaty fishing rights and at
the same time avoid unnecessary conflict with the
State judiciary, the United States, and the plain-
tiff tribes on July 28, 1977 asked this Court to
specifically determine and allocate a portion of
the harvestable fish between treaty and non-treaty
fishermen for the 1977-78 season.
2. This request was prompted by the Washington
Supreme Court's determination that the Department
of Fisheries had no authority to make such an
allocation under State law and the decisions of
that Court that the Director must affirmatively
authorize the harvest of all fish not needed for
D-2
propagation escapement and must do so on a basis
that does not recognize treaty fishermen as a
separate class whose distinct Federally secured
rights are to be specifically protected. This
Court thereupon issued a preliminary order on
August 10, 1977 by which it assumed the responsi-
bility for allocating the salmon runs between
treaty and non-treaty fishermen, enjoined the State
from authorizing or permitting harvest of the
treaty fishermen's share, and directed the State to
manage the remaining portion in a manner that would
meet conservation needs and permit harvest of the
remainder by non-treaty fishermen under State law
and control. This Federal Court ordered allocation
was necessary only because the State Supreme
Court's interpretation of State law had prohibited
State regulatory or management authorities from
safeguarding or observing the treaty tribes’ Fed-
eral rights. Puget Sound Gillnetters Association
v. Moos, 88 Wash. 2d 677 (1977). Purse Seine
Vessel Owners Association v. Moos, 88 Wash. 2d
i The August 10, 1977 order referred to above
allocated a specific number of Puget Sound Chinook
to treaty Indians for the 1977-78 season. This
Court removed from the State of Washington author-
ity, control and jurisdiction over the treaty
allocation. The State enjoined from exercising any
form of harvest management authorization over the
fish so allocated.
4. The defendant Director of Fisheries proml-
gated regulations consistent with this Court's
Orders but was then enjoined by the Superior Court
for Thurston County from enforcing Emergency Orders
77-68, 77-70 and 77-73. Puget Sound Gillnetters
Association v. Sandison, No. SSI07- The Director
had determined that his regulations were necessary
to effectuate the management scheme ordered by this
D-3
Court. The Director of Fisheries was also ordered
by the State Court to adopt harvest regulations
based upon the total predicted number of salmon in
the Puget Sound Area in such a manner as to elimi-
mate the opportunity for treaty fishermen to
harvest their treaty share and in total disregard
of this Court's prior orders including Final
Decision No. l.
5. The very purpose of this Court's allocation
order was to provide the treaty Indian fishermen
the fishing opportunity required under treaties
with the plaintiff tribes as interpreted by prior
decisions of this Court.
6. The number of fish needed to insure proper
spawning escapement remains within the jurisdiction
of the State of Washington. Regulations adopted by
the state (77-68, 77-70, 77-73) were necessary to
insure that non-treaty fishing did not encroach
upon fish needed to perpetuate the run.
i The regulations enjoined by the state court
were adopted by the Director of Fisheries to comply
with this Court's allocation order. The Thurston
County Superior Court's injunction against enforce-
ment of these regulations therefore brings that
court into direct conflict with specific orders of
this Court. In addition to the order of August 10,
1977, the state court's action is in direct con-
flict with this Court's decision of March 12, 1974
(384 F. Supp. 312) which has been affirmed by the
United States Court of Appeals for the Ninth
Circuit and is now final and binding (520 F.2d 676,
693, cert. denied 423 U.S. 1086). That decision
orders, in part, that:
The defendants will make significant reduc-
tions in the non-Indian fishery, as are
necessary to achieve the ultimate objectives
of the Court's decision without requiring
mathematical precision, but in making such
reductions will do so consistent with the
concept of permitting the full harvest of
fish. 384 F. Supp. at 420.
D-4
8. If the state court's judgment is permitted to
stand, the orders of this Court will be rendered
ineffective and plaintiff tribes will again be
denied their federally determined rights. There-
fore, it now appears that in order to protect and
effectuate the prior orders of this Court, and to
preserve its jurisdiction over the subject matter,
it is necessary that this Court stay the state
court's preliminary injunction and enjoin the state
courts’ from proceeding further in contravention of
this Court's orders.
CONCLUSIONS OF LAW
be Based upon the legal arguments presented, this
Court is satisfied that it has jurisdiction to
enjoin the state court proceeding referred to,
within the express exceptions to the anti-injunc-
tion statute, 28 U.S.C., Section 2283 and under the
authority of Leiter Minerals, Inc. v. United
States, 352 U.S. 220 (1957). The Court believes it
has an urgent duty to take such action to the
extent shown necessary in order to effectuate its
judgment and protect the Federal treaty rights
declared therein.
# It is clear beyond reasonable question that
the state court injunction referred to above, if
allowed to remain in effect, would prevent defen-
dants from complying with this Court's order to
manage the non-treaty allocation share in such
manner as to protect fish needed for escapement and
mot interfere with the treaty fishermen's oppor-
tunity to catch their allocated share of the
harvestable resource. Interference with the
exercise of Indian treaty fishing rights indisput-
ably is within the jurisdiction of this federal
Court, and state court proceedings instituted by
non-parties to this lawsuit cannot be allowed to
frustrate either the jurisdiction or the final
determination of this Court.
D-5
= Based upon the above findings, the data,
memoranda and arguments recently received and
reviewed in connection with this Court's Order
dated August 10, 1977, the Temporary Restraining
Order dated August 26, 1977 and this motion, the
Court concludes that gross inequities between
treaty and non-treaty harvest will occur if defen-
dants are prevented from enforcing their adopted
regulations. Because substantial fish resources
will be lost for this year to plaintiff tribes if
not harvested during the current and upcoming
seasons, the immediate threat of substantial
economic harm and serious hardship to many treaty
right fishermen convinces this Court that prompt
action is required to protect Federal treaty rights
that this Court has found are constitutionally
guaranteed as the law of the land and to assure the
viability of this Court's orders. Plaintiffs
herein have overwhelmingly met their burden of
proof to show that enforcement of the proposed
Department of Fisheries regulations limiting the
fishing time on the non-treaty allocation would
achieve at least partial compliance with this
Court's directives to make additional fish avail-
able for harvest by treaty right fishermen, and
that prohibition by the state court of enforcement
of that regulation presents an immediate threat of
substantial economic harm and serious hardship to
plaintiff tribes. Thus, while plaintiffs have
demonstrated irreparable injury to the treaty
fishermen if the injunction is not granted, defen-
dants have not demonstrated a substantial injury
which will result to either themselves or other
interested persons as a result of issuance of the
preliminary injunction.
4. The Court further concludes that the public
interest will best be served here by permitting the
United States government to honor its treaty
obligations to the Indians and by this Court seeing
that its valid, final judgments and orders are
protected and effectuated.
D-6
5. For the reasons set forth above, the Court
finds and concludes that the plaintiffs have a
strong likelihood of prevailing in this cause
following a trial on the merits and thus the
preliminary injunction staying the state court
preliminary injunction should issue.
6. Alternatively, the Court finds and concludes
that not only have plaintiffs raised serious
questions, but they have demonstrated that the
balance of hardships tips sharply in their favor.
See, William Inglis and Sons Baking Co. v. ITT
Continental Baking Co., 526 F.2d 86 (9th Cir.
1975).
For the reasons hereinabove stated, unless
and until this Court orders otherwise, IT IS NOW
HEREBY ORDERED AS FOLLOWS:
PRELIMINARY INJUNCTION
1. That the Superior Court of the State of Wash-
ington, County of Thurston, is hereby enjoined
and prohibited from in any manner or to any ex-
tent enforcing the temporary injunction issued
by said Court on August 24, 1977, in No. 58107,
and from issuing any other order in said cause
which in effect will prevent the Department of
Fisheries from fully complying with the orders
of this Court.
That defendants, State of Washington, Gordon
Sandison, the Departments of Fisheries and Game
of the State of Washington, and their officers,
agents, servants, employees and attorneys, and
those persons in active concert or participation
with any of them, shall not obey, carry out,
enforce or otherwise treat as having any lawful
force or effect the order of the Thurston County
Superior Court for the State of Washington re-
ferred to in paragraph (1) above until further
order of this court.
D-7
Rule 65(c), Federal Rules of Civil Proce-
dure, pertaining to security necessary for issu-
ance of injunctions, provides in part: "No such
security shall be required of the United States
or of an officer or agency thereof." The appli-
cation for injunctive relief herein having been
made by the United States, this Court may not
require security therefore from the United States,
and does not require such security from any
parties joining in or supporting said applica-
tion.
IMPLEMENTING ORDERS
For reasons not clear to this Court, the
Department of Fisheries takes the anomolous posi-
tion of opposing entry of this preliminary in-
junction issued above, while asserting the
correctness and appropriateness of the regula-
tions enjoined in the State Court proceeding.
This Court's preliminary injunction confirms
the propriety of the Department of Fisheries
regulations. Moreover, this Court has not and
will not direct, limit or in any manner what-
ever interfere with full exercise of the pre-
rogatives, duties and discretion vested by State
law in the Directors of the Departments of Game
and Fisheries, except to the extent necessary
to enforce the judgment and decree entered pur-
Suant to Final Decision No. 1 and to restore or
preserve the Indian treaty rights specified
therein. Nothing in this Decision or in the
above injunction should be construed or applied
to the contrary.
However, due to the circumstances previously
recited, and to aid in achieving an equal oppor-
tunity to both treaty Indian and non-treaty
fisherman to harvest fish in the case area, this
Court finds it necessary in aid of its juris-
diction and to protect and effectuate its judg-
ment, to provide as follows:
IT IS HEREBY ORDERED THAT:
D-8
be The defendants are required to enforce
their regulations providing for management and
control for purposes of conservation and over
the non-treaty allocation share so that the
treaty allocation shall not be encroached upon.
Zs Regulations governing the non-treaty
allocation, once adopted by the defendants in
accordance with the Court's prior rulings and
this order, shall not thereafter be relaxed or
rescinded without prior notice to this Court
and all parties to this action, unless consent
of the affected plaintiff tribes has been ob-
tained prior thereto.
s To the extent reduction in the non-
treaty fishery adopted in accordance with the
Court's prior rulings already has been relaxed
or rescinded prior to the entry of this order
by reason of the preliminary injunction of the
Thurston County Superior Court in Puget Sound
Gillnetters Association v. Sandison, No. 58107,
issued August 24, 1977, defendants shall cease
immediately from carrying out directives, orders
or policies in accordance with said preliminary
injunction and shall resume forthwith to imple-
ment the regulatory schemes and policies pre-
viously adopted to effect its management control
over the non-treaty allocation share.
4. If, at any time subsequent to the entry
of this order, defendants are participants in
legal proceedings which, in their judgment might
possibly result in an order that could impair
or otherwise affect adversely their ability
to conform to the requirements of this Court's
allocation order, or other orders in this case,
defendants shall immediately so inform this
Court and shall serve upon all parties to this
action copies of all papers filed in such legal
proceedings.
24 Defendants shall take such action as
may be necessary to notify forthwith their offi-
cers, agents, employees, and attorneys, and those
D-9
persons in active concert or participation with
them, of the contents of this order and the
duties and obligations defined herein.
IT IS SO ORDERED, ADJUDGED and DECREED,
effective immediately upon entry hereof this
3lst day of August, 1977.
/s/
SENIOR UNITED STATES
DISTRICT JUDGE
Presented by:
JOHN C. MERKEL
United States Attorney
/s/
MICHAEL R. THORP
Attorney
Land and Natural Resources Division
U.S. Department of Justice
APPENDIX E
UNITED STATES DISTRICT COURT
WESTERN DISTRI.~ OF WASHINGTON
AT TACOMA
UNITED STATES OF AMERICA, et al.,) CIVIL NO. 9213
Plaintiffs, ) TEMPORARY RE-
vs ) STRAINING ORDER
STATE OF WASHINGTON, et al., ) RE: ENFORCEMENT
Defendants. ) OF 1977
) FISHERIES
Based on the memoranda, oral representations
of State, Tribal and Federal attorneys stated
in open court on August 30, 1977, and the August
29, 1977 Affidavit of Duane Phinney of the Wash-
ington Department of Fisheries, the court finds
as follows:
(1) The State of Washington, Department
of Fisheries intends to comply with the orders
of this court, but that their citations will
not be prosecuted by local prosecutors.
(2) The State Assistant Attorney General
has represented to this court that the Prosecutor
of Whatcom County has already notified the Wash-
ington Department of Fisheries that he will not
prosecute any citations issued in his jurisdic-
tion, which includes Bellingham Bay.
(3) The Assistant Attorney General, James
Johnson, representing the State of Washington,
has specifically requested this court to assume
enforcement responsibility for the 1977 fishing
season.
Based on the above findings, which are not
in dispute, the court finds that the State of
Washington is unable at this time to control its
licensed fishermen and its courts so as to be
in compliance with orders and rulings of this
court.
The court further finds that this situation,
if permitted to continue, will lead to a break-
down of law and order in the waters of the case
E-2
area, the substantial denial of federally guar-
anteed treaty fishing rights and will endanger
the preservation of the fishery resource.
Therefore, it is hereby ORDERED that:
1. All reef net, gill net and purse seine
fishermen licensed by the State of Washington,
the Puget Sound Gillnetters Association, the
Purse Seine Vessel Owners Association, the Grays
Harbor Gillnetters Association and all persons
in active concert or participation with them are
hereby temporarily restrained from engaging in,
taking, possessing, or selling salmon of any
species in violation of this court's orders of
August 10, 1977 or August 31, 1977 or State reg-
ulations adopted pursuant to the orders of this
court.
2. It is further ORDERED that the United
States, through its agencies and officers, take
all necessary steps to:
(a) Insure on orderly harvest of fish;
(b) to preserve the resource; and
(c) to aid the court in the enforcement of
the terms of this Temporary Restraining
Order or subsequent orders of this court.
3. The United States, through the Coast
Guard, the National Marine Fisheries Service,
the United States Marshal Service and such other
agencies as may be appropriate and the State of
Washington through its Department of Fisheries
and such other agencies as may be appropriate,
are hereby ordered to draft and serve copies
of a notice from this court, incorporating by
reference this Temporary Restraining Order, the
orders of this court and the closures promul-
gated by the State of Washington pursuant to
those orders, upon any fisherman fishing in
violation of these closures; and the United
States and State of Washington are hereby ordered
to cite any fisherman who continues to fish in
violation of said closures to appear before the
United States District Court to show cause why
he should not be eld in contempt.
4. The issuance of a Temporary Restraining
Order is necessary to prevent irreparable injury
to the plaintiff tribes and their members.
E-3
as The issurance of a Temporary Restrain-
ing Order is necessary in aid of this court's
jurisdiction and to protect and effectuate this
court's prior judgments.
IT IS FURTHER ORDERED that a hearing be
held on Monday, September 12, 1977 at 1:30 p.m.
to consider whether this Temporary Restraining
Order should be made a preliminary or permanent
injunction.
IT IS HEREBY SO ORDERED this 3lst day of
August, 1977.
/s/
GEORGE H. BOLDT
SR. UNITED STATES DISTRICT
JUDGE
APPENDIX F
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
UNITED STATES OF AMERICA, et al.,) CIVIL NO. 9213
Plaintiffs, ) MEMORANDUM
vs ) ORDER AND
STATE OF WASHINGTON, et al., ) PRELIMINARY
Defendants. ) 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 docu-
mentary and testimonial 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 super-
seded in their entirety by this Memorandum Order
and Preliminary Injunction.
Based on all of the evidence, the prior
holdings and decrees in this case, and certain
decisions of the Supreme Court of the State of
Washington, this court FINDS, HOLDS and ORDERS
as follows:
lL. The defendant, State of Washington,
and its courts, legislature and fisheries manage-
ment 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 plain-
tiff 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
F-2
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 regu-
late such fishery resources and harvest and
have stated that such inability is based, at
least in part, on State law as recently pro-
nounced by the Washington State Supreme Court
and on the refusal of the State leg.slature to
enact legislation authorizing the Department of
Fisheries to regulate the harvest of the re-
source 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 pre-
viously decreed by this 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 pro-
vided by this court's decrees.
4. The Supreme Court of the State of Wash-
ington held in the case of Puget Sound Gill-
metters Association, et al. v. Donald Moos, et
al., No. 44401, decided June 9, 1977 (565 P.2d
TI51), 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 har-
vesting of salmon by the commercial fishermen
only to the extent 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 auth-
orize commercial harvest, the Director of Fish-
eries may not “allocate fish among competing
F-3
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 aust 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 fisher-
men based upon their race or ethnic background
are not proper." It reaffirmed this holding on
July 21, 1977 in Purse Seine Vessell 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.4 4401 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 con-
fidence 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. Specifically,
this court has decreed that the treaty tribes
hold the reserved treaty right to harvst ana-
dromous 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
F-4
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 regu-
lations 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 pre-
empt it totally. This court has also decreed
that the defendants must make "significant re-
ductions in the non-Indian fishery, as are neces-
sary 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 Director of Game, have each on occasion
applied RCW 75.12.060 and RCW 77.16.0600 to re-
strict the exercise of the fishing rights of
certain plaintiff tribes contrary to the holding
and decree of this court. (Ex. PL 10-9, PL 110,
P.L 111; Tr. 8/8/77, (Sandison), page 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, 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).
o. On or about June 1, 1977, the Director
of Fisheries adopted and filed with this court
an emergency regulation closing Indian Treaty
F=5
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 spawn-
ing escapement needs and needed "complete pro-
tection." The Director advised 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 Fish-
eries 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 those excess fish.
(Ex. USA 143). The Director refused tribal re-
quests 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).
bi 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 con-
tinuance of the closure. (Ex. F lll). By that
time, the Department of Fisheries had estab-
lished that the harvestable surplus in the run
was 61,000. (Tr. 7/21/77, page 151).
2. 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.
F-6
13. On July 22, 1977 the Director of Fish-
eries adopted regulations for the 1977 commercial
harvest of Puget Sound chinook, coho and chum
salmon runs. (Ex. PL 102). Neither the regu-
lations nor the accompanying statement of "1977
Regulatory Considerations" makes any reference
to treaty rights 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 regulatins 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 decrees 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 law-
fully be applied to restrict members of treaty
tribes from exercising their tribe's treaty
fishing rights or which may be applied to auth-
orize non-treaty fishing within limitations pre-
scribed by the decrees of this court.
15. The Fisheries Advisory Board appointed
a Technical Committee consisting of five biolo-
gists representing treaty tribes and four biolo-
gists 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 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:
Management
Straits
Nooksack-
Samish
Skagic
Snonomi sh-
Stillaguamish
South Sound
Hood Canal
*“txcludes 3,900
=
straics
Nooksack-
Samish
Skagzgic
Snonomish-
Stillaguamisa
South Sound
Hood Canal
Run Size
59,000
66 ,000
198 ,000
513,000
98 ,000
coho interceptions
No harvestable
12,300
204 ,900
CORO
Escapement
Goal
11,000
4,000
35 ,000
26,000
+5 ,200
22 ,900
CaiUM
runs expected
Total
Harvestable
Number
48 ,000
118,000
31,000
132,900
468 ,000
76,000
Sv treaty Iadians
137,500
F-8
16. The following figures represent sub-
sistence and ceremonial and on-reservation esti-
mates of treaty catch as previously filed by
plaintiff tribes with this Court:
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
Shohomish-
Stillaguamish 2,200 5,500
South Sound 17,000 11,300
Hood Canal 3,600 3,500
On Reservation
COHO CHUM
Straits 12 ,000 -
Nooksack-
Samish no estimates available
Skagit 3,400 =
Snohomi sh-
Stillaguamish 7,800 -
South Sound 28 ,000 14,000
Hood Canal 12,000 14 ,
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